CC No.1509.2016

Filed on 19.11.2016

Disposed on.18.06.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 18^th DAY OF JUNE 2018

CONSUMER COMPLAINT NO.1509/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

             Smt.L.MAMATHA, B.A., (Law), LL.B.

                      MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 19.11.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay compensation of Rs.92,274/- and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he purchased Apple I phone 6s Mobile bearing IMEI:355418071799915 on 21.12.2015 from Paytm India from their website www.paytm.com. Late August 2016, he started facing severe battery issues.  He had to charge his phone 4-5 times in a day with minimal usage.   For which he contacted Paytm India on their customer helpline                                 No:-1203062244 wherein they had directed him to go to Apple Authorized Service Center.  So he decided to give his phone to the Authorized Service Centre in Jayanagar, Bangalore Opposite Party No.3.  On 07.09.2016, they just formatted his phone and returned it to him, he was asked to test it again for few days and get back to them in case of any problem. The problem was obviously not rectified, so he went back to them and submitted the device to them on 12.09.2016, bearing Job Sheet No.JNBLR12091615001.  He was then told that they would keep the phone under observation for 48 hours and get back to him.  There was no response or call from their side. After repeatedly calling and visiting them, the finally gave him a replacement on 21.09.2016 bearing new IMEI No.358567075896874.  He again started facing the same battery issues with this handset.  He cannot believe that in less than 20 days a new replaced phone of such a big brand, could have such battery issues.  He again went back to them on 12.10.2016.   And as usual they just formatted his phone and returned it to him.  He again had to go to them the next day saying his problem was still not rectified.  He again submitted his phone to them bearing Job sheet No.JNBLR13101616687 and he was told that he will get a response from them within 48 hours, which did not happen.   After continuous following up, finally on 20^th October 2016, Opposite Party No.3 returned his phone saying they have reformatted his phone and re installed the IOS and hence it will work fine.  After getting back the device he tested it the same night and also tested it for another 10 days, the same problem still continued.  The battery is draining out very fast.  He need to charge the device 3 times a day with minimal/no usage.  One night he charged the phone 100% and the next morning when he got up the battery was around 45% even without using it, and kindly note no applications were installed on his phone during that time.  The Complainant has been continuously in touch with Apple India Private Limited (Opposite Party No.1) No.0008000401217 with M/s Archana and Ms.Roohi.  On 4^th November the Complainant had a telephonic conversation with Ms.Roohi, as per her instructions he took a backup of his phone and then reinstalled the software.  She had asked him to then charge the phone 100% and test it.  He followed her instructions, but the problem continued.  On 4^th November 2016 he received call from Ms.Roohi and she pressurized him to follow her instructions otherwise she would close the case stating that the battery is working fine. When the Complainant had raised a complaint about battery not working fine, how can they threaten him that the battery is working fine.  Is it a clear lie.  The Complainant troubled by the service center guys as they aren’t ready to accept their mistake again.  Whereas the battery issues are clearly evident.  He fail to understand how the technical team is unable to solve the problem despite of keeping the phone under observation for so many days.  They have issued a defective device to him in the name of Replacement.  The phone has to be charged within a period of 24 hours.  This phone is almost lying idle or with the service center.  The Complainant not satisfied with the quality of the product as well as the service provided.  Hence, the Complainant would request to refund his entire invoice amount as he will not accept a device which is of inferior quality or has any defect/problem in it.    Hence this complaint.

3. Even though notice was served on Opposite Party No.3 & 4, but the Opposite Party No.3 & 4 failed to put their appearance and placed them ex-parte.
4. In response to the notice, the Opposite Party No.1 & 2 put their appearance through their counsel and filed their version. 

The Opposite Party No.1 in their version pleaded that the complaint is devoid of merits.  I Phone sold in India by the Opposite Party No.3 through their Authorized Dealer/resellers are known for their cutting-edge technology and utmost customer satisfaction.  Due to the said attributes the IPhone is one of largest selling devices in the world and India. The said I Phone undergoes strict quality tests to ensure that the said products maintain high standards to ensure that they do not fail to meet industry standards.  The Opposite Party No.3 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.  The present complaint is malafide, devoid of merit.  It is a common market principle and also an established position of law that consumers who purchase an illegal product are not eligible to claim any relief under the Consumer Protection Act, 1986.  The provisions and terms of the Apple Warranty specifically exclude service of products which are not purchased in the country where it is being given for service, which is the case in the present matter.   In the present case the Opposite Party No.3 had provided an option of out of warranty service to IPhone in question as the same was suffered physical damage due to which there were multiple cracks and dents in the IPhone in question.  Catering to the said laws the Opposite Party No.3’s warranty specifically states that the service of its products will be limited to the reason the IPhone in question isn’t working efficiently.  The Opposite Party No.1 is known for its consumer support system not only in India but across the world.  As per the Warranty Policies of Apple in section (b) on products the warranty does not apply clearly mentions that it is not applicable “to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship”.  It is a settled principle of law that mere bald allegations are to sufficient to prove a case.  The onus to prove allegations lie on the Complainant and hence the Complainant may be directed to furnish and prove his allegations in relation to the complaint, particularly in view of the evidence brought on record by the Opposite Parties in this case.  Further that the Complainant is well aware equally that such acts in effect breach the terms of the Apple Warranty meaning thereby that the Opposite Party No.3 is not liable for and required to compensate the Complainant for such damage. It is stated that the facts stated in the present complaint are concocted and the Complainant should be held liable for his acts of suppression and concealment. The instant complaint is not only misconceived but is designed to support a false case to suit the Complainant’s malafide interest whereby the Complainant has sought to take undue advantage of his own negligence by seeking to misuse the general protection available to consumers in law.  Hence this complaint.

5. The Opposite Party No.2 in their version pleaded that the Opposite Party No.2 is the owner of the website www.paytm.com along with the Mobile Application named “Paytm” which is an online market place and acts as a platform for different sellers to sell their products and for different byers to access and purchase amongst variety of goods offered by various sellers subject to the terms and conditions as enumerated on the website of Opposite Party No.2.  The Opposite Party No.2 is an intermediary as defined in the Information Technology Act, 2000 and exempted from liability for third party information, data and communication link made available or hosted by it.  The Opposite Party No.2 at www.paytm.com is a common market place to facilitate the sellers to list their goods and buyer’s to access goods from multiple sellers.  Opposite Party No.2 does not sell any of the goods on the said website directly and hence this Hon’ble Forum would appreciate that it acts merely as a marketplace where seller, upon registering with Opposite Party No.2, have the opportunity to display their goods and these are purchased by the buyers at the price determined and displayed by the seller.  The terms and conditions specifically agreed by the Complainant at the time of placing the order, for purchasing Apple Iphone 6s mobile bearing IMEI:355418071799915 on 21^st December, 2015 Provides that “Paytm has not control over the existence, quality safety or legality of items displayed; the accuracy of third party content or listings; the ability of sellers to sell items; the ability of buyers to pay for items.’ Clause (3) of the terms and conditions further provides that Paytm is not a warrantor of the products.  The present complaint is liable to be dismissed against the Opposite Party No.2 as no case has been made out against the Opposite Party No.2.  The Opposite Party No.2 has been wrongly impleaded by the Complainant as an Opposite Party, without any deficiency of service on its part.  The Complainant in the present complaint, the ordered product was purchased by the Complainant from the Opposite Party No.4 using the Online Marketplace Platform provided by the Opposite Party No.2.  The product was duly delivered to the Complainant.  The role of the Opposite Party No.2 got over as soon as the product was delivered to the Complainant.  The Opposite Party No.2 is neither the manufacturer, nor the warrantor of the product in question.  Hence, any dispute with regard to the quality, guarantee, after sales service or warranty of the product lies with the Seller and the Manufacturer or the Authorized Service Center of the Manufacturer. Admittedly, the Complainant approached the Opposite Party No.3 i.e., the Authorized service center of the Manufacturer for the repair of the said product, who miserably failed to repair the product.  The Opposite Parties No.1, 3 & 4 and not with Paytm.  That, the Opposite Party No.2 is neither a necessary, nor a proper party to the complaint as it has very diligently played it’s part of obligation in the matter and therefore, has been wrongly impleaded as an Opposite Party by the Complainant.  The Opposite Party No.2 has been unjustly dragged before this I.D Form and as such unquantifiable loss of reputation and business is being caused to the Opposite Party No.2 that too without any fault on its part.  Hence, is required to be deleted.  The Complainant is not entitled to any relief as the present complaint has been filed with ulterior Motive to harass the Opposite Party No.2.  Thus, the complaint is liable to be dismissed and prays to dismiss the complaint.

6.   The Complainant, Sri.Raunak Doshi filed his affidavit by way of evidence and closed his side.   On behalf of the Opposite Party No.1, the affidavit of one Sri.Priyesh Poovanna has been filed. On behalf of the Opposite Party No.2, the affidavit of one Sri.M.Sivakumar has been filed.   Heard the arguments of Complainant.

7.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled ?

8.     Our findings on the above points are:-

                POINT (1)         :-  Affirmative

                   POINT (2)         :-  As per the final Order

REASONS

9. POINT NO.1:- It is the case of the Complainant that on 21.12.2015 he purchased apple Iphone 6s bearing IMEI No.355418071799915 from Paytm India.  This fact is not been denied by the Opposite Parties.  Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced Invoice No.25520/000000018094 dt.21.12.2015.  By looking into this Invoice, it is in the name of the Complainant, under this invoice the Complainant has purchased Apple Iphone 6s bearing IMEI No.355418071799915 for a sum of Rs.61,475/-.  This evidence of the Complainant has not been challenged by the Opposite Parties.  To discard the evidence of the Complainant, there is no contra evidence.  Therefore, it is proper to accept the contention of the Complainant that on 21.12.2015 the Complainant had purchased Apple Iphone 6s bearing IMEI No.355418071799915 through Opposite Party No.2 for a sum of Rs.61,475/-.  
10. It is further case of the Complainant that in the mid of August 2016 the Complainant started facing severe battery issues.  He had to charge his phone 4-5 times in a day with minimal usage.  For which he contacted Opposite Party No.2 on their customer helpline                                    No:-1203062244 wherein they had directed him to go to Apple Authorized Service Center.  So he decided to give his phone to the Authorized Service Centre i.e., Opposite Party No.3.  On 07.09.2016, they just formatted his phone and returned it to him. The problem was obviously not rectified, so he went back to Opposite Party No.3 and submitted the device to them on 12.09.2016, bearing Job Sheet No.JNBLR12091615001.  The Opposite Party No.3 keep the phone under observation for 48 hours and get back to him.  There was no response or call from their side. After repeatedly calling and visiting them, finally gave him a replacement on 21.09.2016 bearing new IMEI No.358567075896874.  Even this fact is also not been denied by the Opposite Parties.  Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the delivery report, it is dt.21.09.2016 this delivery report is with respect to Job No.JNBLR12091615001 regarding the IPhone 6s.   As looking into this document, the machine was received on 12.09.2016 and repair was closed on 21.09.2016 and replaced the device, thereby it is crystal clear that the Opposite Parties have replaced the device.  Even this evidence of the Complainant has not been challenged or denied by the Opposite Parties.  Therefore, it is proper to accept the contention of the Complainant that the Iphone 6s purchased by the Complainant through the Opposite Party No.2 bearing IMEI No.355418071799915  is defective one and for that reason the Opposite Parties have given a replacement with another new bearing IMEI No.358567075896874 on 21.09.2016.
11. It is further case of the Complainant that the Complainant facing the same battery issues with this handset less than 20 days a new replaced phone of such a big brand, again the Complainant on 12.10.2016 visited the Opposite Party No.3, the Opposite Party No.3 just formatted his phone and returned it to him.  On the next day again raising the same problem was still not rectified bearing Job Sheet No.JNBLR13101616687. After continuous following up, finally on 20^th October 2016, Opposite Party No.3 returned his phone saying they have reformatted his phone and reinstalled the IOS and hence it will work fine.  After getting back the device he tested it the same night and also tested it for another 10 days, the same problem still continued.  The battery is draining out very fast.  He need to charge the device 3 times a day. On 23^rd October 2016 the Complainant charged the phone 100% and the next morning when he got up the battery was around 41%.  The Complainant have been continuously in touch with Apple India Private Limited with Ms.Archana and Ms.Roohi Anwar. 
12. On 4^th November 2016 reinstalled the software and tested it, but problem continued.  Whereas the battery issues are clearly evident.  The technical team is unable to solve the problem despite of keeping the phone under observation for so many days.  They have issued a defective device to him in the name of Replacement.  The phone has to be charged within a period of 24 hours.   In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced Service report with respect to Job No.JNBLR13101616687, this Service Report is dt.13.10.2016 and this service report is with respect to IPhone 6s belongs to the Complainant and the problem with the Iphone is with respect to low battery Life, Battery Drain Fast and the said device was received by the Complainant on 20.10.2016 with remarks that collecting the device, but will check again for a couple of days.  If the problem continuous, I should take the matter to the Consumer Forum and also produced the email dt.07.11.2016 addressed by the Complainant to Opposite Party No.1.  As looking into this mail, it is very clear that the device purchased by the Complainant is of defective one in particularly the battery is draining out very fast.  Even the said device was replaced i.e., also facing same problem and quickly the Complainant used to charged battery 4 to 5 times again and also produced the complaint lodged by the Complainant with customer service Head Apple India Private Limited on 08.11.2016.  Even by looking into this, it is very clear that the device purchased by the Complainant is a defective one and the battery of the device had a problem and it is going to dry very fast, the Complainant used to charge the device 4-5 times.  Inspite of all the allegations made by the Complainant, the Opposite Parties have not rectified the defect found in the device purchased by the Complainant.  This evidence is also not been challenged or denied by the Opposite Parties. So as the evidence placed by the Complainant, it is very clear that there is no any specific allegation of deficiency of service of Opposite Party No.2. Since the Complainant purchased device through website of Opposite Party No.2 and Opposite Party No.3 is service center they provided proper service as and when the Complainant purchased with the Opposite Party No.3   On the other hand, the device was manufactured defect i.e., manufactured by the Opposite Party No.1 Apple India and Opposite Party No.4 who is the seller of defective handset.

13. The Opposite Party No.1 in their version taken a defence that the Warranty Policies of Apple in section (b) on products the warranty does not apply clearly mentions that it is not applicable “to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship”.  In support of this defence, Sri.Priyesh Poovanna, Country Legal Counsel of Opposite Party No.1, he has filed his affidavit, in his sworn testimony, he has reiterated the same, the consumers who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Consumer Protection Act, 1986 and also further stated that the terms of the Apply Warranty specifically exclude damage of products, which is the case in the present matter and also further stated that the warranty does not apply “to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship”.  But except the interested version of Mr.Priyesh Poovanna, they have not produced any evidence in support of their defence that the device of the Complainant had a cosmetic damage i.e., scratches, dents and broken plastic and also the damages or due to negligently handle of the device.  On the other hand, as the evidence placed by the Complainant, it is crystal clear that the defect in the device purchased by the Complainant is of battery problem the battery of the device is draining out very fast and quickly the Complainant used to charged battery 4 to 5 times.  This is very clear, even as per the Job Sheet issued by the Service Center of the Opposite Party No.1 i.e., Opposite Party No.3.  Therefore, it is not proper to accept the defence taken by the Opposite Party No.1 that the Complainant has handling the device negligently and due to his negligent act there was a damage and scratches, dent to the device. So from the evidence on record, it is crystal clear that the device sold by the Opposite Party No.4 to the Complainant is of defective one, Opposite Party No.1 being the Manufacturer manufactured the defective handset which was purchased by the Complainant.  In spite of several request and demand made by the Complainant to rectify the defect.  The Opposite Parties failed to rectify the handset and also failed to make replacement with defective handset.  Thereby there is deficiency of service on the part of the Opposite Party No.1 & 4.   Hence, we answer point No.1 in Accordingly.
14.  POINT NO.2:-  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed against Opposite Party No.2 & 3.

The complaint is allowed holding that there is deficiency of service by the Opposite Party No.1 & 4.

The Complainant is directed to return the defective I-Phone to the Opposite Party No.4 within 15 days from the date of receipt of this order.

The Opposite Party No.1 & 4 are directed to refund a sum of Rs.61,475/- value of the I-Phone to the Complainant within 30 days from the date of receiving the defective I-Phone.

The Opposite Party No. 1 & 4 are directed to pay sum of Rs.10,000/- as compensation for causing mental agony to the Complainant.

The Opposite Party No.1 & 4 are further directed to pay sum of Rs.5,000/- as cost of this litigation to the Complainant.  Failing which the aforesaid amount will carry interest at 18% p.a. from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 18^th day of June 2018).

MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Raunak Doshi, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Invoice dt.21.12.2015.
2. Copy of Delivery Report dt.12.09.2016.
3. Copy of Service Report dt.13.10.2016.
4. Copy of screen shots.
5. Email dt.07.11.2016, 17.10.2016, 18.11.2016.
6. Postal acknowledgement.
7. Complaint dt.08.11.2016.

Witness examined on behalf of the Opposite Parties:

1. Sri.Priyesh Poovanna, Country Legal Counsel of the Opposite Party No.1 by way of affidavit.
2. Sri.M.Sivakumar, Authorized Representative of the Opposite Party No.2 by way of affidavit.

List of documents filed by the Opposite Party:

                                                -NIL-

MEMBER                                                     PRESIDENT