Delhi

West Delhi

CC/17/426

SAHIL KHAN - Complainant(s)

Versus

APPLE INDIA PVT LTD - Opp.Party(s)

21 Apr 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   426/17

In re:-

Sahil Khan

s/o MD Aftab Khan

F-188, ShyamVihar

Phase-I, Najafgarh

New Delhi-110043                                                 ………..Complainant

VERSUS

Ms/s Apple India Pvt Ltd

19^th floor, Conforde Tower

UB City No.24, Vittalmailya Road

Banglore-560001

 

M/s Unicorn Info Solution Pvt. Ltd.

GF-43, Ground floor backside

Pacific mall, Subhash Nagar

New Delhi-110018

 

M/S Friends Telecom

WZ-110, Street No.1

Palam Colony, Sadhnagar

Maharaja Agarsen Chowk

New Delhi-110045                                                            ..........Opposite Party

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution:21.07.2017

Judgment reserved on: 05.04.2022

Date of Decision:21.04.2022

Order by Richa Jindal (Member)

order

1. That the complainant has filed the present complaint. Brief facts presented before the hon’ble forum are as follows:-

1. The complainant is a college student and purchased I-phone 6 32gb bearing IMEI No.359220070657581 on 01.04.2017 for the cost of Rs.30,000/- from opposite party no. 3.

 

2. However after two months of purchase subject mobile starting giving display problem for which complainant approached the 2^nd opposite party i.e. service centre of OP 1, on 01.06.2017 reporting the issue of the display popping up/making a clicking’ sound after which the device was submitted by him with to the opposite party no.2.

 

3. The complainant received a new device on 05.06.2017 in exchange at 12.50 pm but later on the same day, the complainant realized that the replaced device also has the same issue and revisited the opposite party no.2 on 05.06.2017 at 5.02 pm to submit the device again. On 09.06.2017, the complainant received the device with a renewed display (repair id–G281381675). On 20.06.2017, at 4.12 pm, the complainant visited the opposite party no.2 with the same issue, after which the device was submitted again and received a replaced device on 24.06.2017 at 01.37 p.m.Lateron, 13.07.2017, at 11.27 a.m. the complainant visited the opposite party no.2 with the same problem for the 4^th time. The opposite party no.2 again submitted the device. On 19.07.2017 the complainant visited the opposite party no.2 to recollect the device. This time, when the device was unboxed in the opposite party no.2, they found the same issue in the phone, which is mentioned in the job sheet (Job No. DP1694031) that the customer received the device with the same pop-up issue.

 

4. After repeatedly visiting the customer service and getting replaced devices, having the same issue, again and again, the complainant decided to file an official complaint in the court to seek justice.

 

5. The complainant is a college student and suffered an academic loss due to skipping college and also had to spend a lot of amounts on commuting to the opposite party no.2 and court repeatedly.

 

6. The complainant is facing financial losses due to making repeated rounds to theopposite party no.2. since he is a college student, he has also suffered academic loss because he had to spend so much time on this matter.

 

7. After repeatedly visiting the opposite party no.2 and receiving defective devices every time, the opposite party 1 did not provide any strong solutions. When after every complaint and giving the opposite party no.2 several chances, the complainant received devices with the same defect and was extremely unsatisfied, he files a consumer complaint beforethe consumer forum to seek justice and other relief by way of refund of cost of the defective mobile or replacement thereof.

 

2. Accordingly, on 26/07/2017 after hearing arguments on admission, notice was issued to OPs returnable on 03/10/2017. OP No.1 appeared before the forum on 3-10-2017 and took time for filing a reply, accordingly again court notice was again issued to OP no. 2 and OP no. 3 returnable on 22/11/2017. On 22/11/2017 OP no.1submitted a reply to the complaint. The matter adjourned to 7/2/2018 for filing a reply on behalf of OP No.2 and OP No.3. Brief facts of the reply on behalf of OP No.1 are as follows:-

1. The complainant purchased the iPhone 6, 32 GB bearing IMEL No. 359220070657581 on 01.07.2017 for the cost of Rs. 30, 000/- (Rupees thirty thousand) from the opposite party No.3. The complainant approached the 2^nd opposite party an authorized service provider of the opposite party No.1 for some alleged issues regarding the display making a clicking sound. The opposite party No.2 diagnosed the device and found that the said issues were in it but since the device was under warranty, the 2^nd opposite party replaced the display of the device and the same was returned to the complainant in the working condition. The complainant approached again the 2^nd opposite party for the same issues, since the device was under warranty, they replaced the device with the new iPhone 6. The complainant again approached the 2^nd opposite party with some alleged issues, the 2^nd opposite party thoroughly diagnosed the device and replaced the device under warranty with the new iPhone 6 bearing serial NO. FDTP27XHXR5. The copies of service reports are produced along with our objections. Thereafter the complainant never visited the opposite party no. 1 anytime.  It is pertinent to mention that opposite party no.1 has been prompt in providing service through its authorized service provider whenever the complainant has visited them and so there is no question of causing deficiency in service on the part of the opposite party no. 1. The opposite party no.1 has not caused any sort of difficulty or loss to the complainant orthe complainant has not suffered any sort of mental agony or harassment due to the opposite parties. further the complainant has not produced any sort of evidence in support of his claims. Despite the same, the complainant has filed this frivolous complaint by twisting the facts to mislead this Hon’ble Forum which an intention to enrich undeserving financial benefits from the Opposite Party No.1. Hence this complaint stands not maintainable and is liable to be dismissed for having no merits.

 

2. The complainant’s negligently handling of the device created a defect and not due to a manufacturing defect or deficiency in service on the part of opposite party no.1. Despite the complainant’s negligence the complainant is now trying to claim a refund/replacement. The opposite party no.1 cannot be held liable for the complainant’s acts and omissions. Hence the opposite party no. 1 is not attributable for any sort of replacement/refund and compensation to the complainant.

 

3. The complainant has not produced any sort of expert opinion to prove that the device was defective. The complainant has not produced any evidence to show that the opposite party no.1 will replace the device beyond the warranty policy or the device was defective with the warranty policy. The opposite party never denied any sort of service or assistance to the complainant whenever he visited them and so the opposite party cannot be held liable for any compensation to the complainant for his acts and omission. The complainant is eligible for an out of warranty paid service. The complainant has miserably failed to prove that there was a deficiency of service or unfair trade practice.

 

4. The opposite party no.1 relied on the following judgements:-

 

-The National Commission in M/s Tata Motors Ltd Versus Mrs Surjit Kaur & Others has held that adherence to the instructions contained in the warranty manual is a pre-requisite for admission in case of a manufacturing defect.

- Further the State Consumer Forum Tamil Nadu in N.R.Jayachandran Vs FORD India Limited had held that the owner's instruction manual should be followed.

-The Supreme Court of India in C.N.Anantharam V Fiat India Ltd.and Ors that as the consumer failed to prove any manufacturing defect in the product and he is not liable to claim compensation for the same.

-The State Consumer Forum, Punjab in Lagger Industries Ltd.vs Daimler Chrysler India Pvt.Ltd. it was held that in absence of any manufacturing defects consumers cannot claim benefits/relief.

 

A clear perusal of these authorities establishes the fact that the complainant did not follow the instructions mentioned in the warranty. Thus, the APPLE is not obliged to service/replace his iPhone as per the warranty policy.

 

5. The complainant has not produced any sort of evidence in support of his claims. The complainant has miserably failed to produce an expert opinion to show that the device had a manufacturing defect in it. The complainant has not suffered any mental agony due to the opposite party no. 1. The contentions put forth by the complainant are sham and have been narrated in a manner to give them an apparent colour of reality. Thus, rendering the complaint, liable to be dismissed for not having merits.

 

6. The Opposite party no.1 has been prompt in providing service through its authorized service provider by replacing the display of the device and replacing the device twice whenever the complainant had visited them and so there is no question of deficiency in service on the part of the 1^st Opposite party. The complainant has failed to prove deficiency in service against the Opposite Party No. 1. There is no record of the Opposite Party No.1 denying any service or refusing to provide service to the complainant. The opposite party no.1 has diligently undertaken the analysis and advised the complainant that his device has been replaced under warranty and the same was handed over to the complainant. The complainant has failed to establish the claim of deficient services and also admitted the same nor has any evidence been provided. Therefore, such cases as in the present case, cannot be covered under the terms and conditions of the warranty which has not indulged in any alleged unfair trade practice. Hence the opposite party no.1 is not attributable for any sort of refund/replacement and compensation to the complainant.

 

• The Supreme Court of India in C.N.Anandtharam vs Fiat Ltd and Ors that as consumer failed to prove any manufacturing defect in the product and he is not liable to claim compensation for the same.

 

• State Consumer Forum, Punjab in Lagger Industries Ltd. Vs Daimler Chrysler India Pvt. Ltd. held that in absence of any manufacturing defects consumers cannot claim benefits/relief.

A clear perusal of these authorities established the fact that the complainant did not follow the instructions mentioned in the warranty, thus the Opposite Party No. 1 is not obligated to service/replace his iPhone as per the Warranty policy. The complainant has miserably failed to prove that there was a deficiency of service or any unfair trade practice on part of the opposite party No.1.

 

7. A perusal of the Warranty policy in the objections clearly states that the warranty period is of only one year. Further, the Hon’ble National Consumer Forum in M/s Tata Motors Pvt Ltd vsSurjit Kaur & Others has held that in order to get service of products within warranty the complainant would have to adhere to the warranty provisions. There is no iota of evidence to support the fact that the Opposite Parties failed to provide services to the complainant.  It is evident that he has contacted this Hon’ble Forum with unclean hands and the Opposite parties have not failed to prove services to him and have performed their duty. The complainant is now blatantly claiming negligence and deficiency of service, which is not admissible.  The complainant has not followed the provisions of the warranty hence, the claim for deficiency and negligence does not hold water.

 

8. The main ingredient of this complaint is neither established nor proven by the complainant. There is no expert evidence to support the complainant’s claim of the device being allegedly defective. This defeats the very purpose of filing this complaint. The complainant has not produced any evidence to show that the opposite party will replace the device beyond the warranty policy or the device was defective with the warranty policy. Opposite parties cannot be held liable for any compensation to the complainant for his acts and omission. The complainant now is eligible for an out of warranty paid service only. The complainant has miserably failed to prove that there was a deficiency of service or unfair trade practice.

 

1. The complainant is misleading the facts and trying to disparage the rapport of the Opposite Party by alleging frivolous claims, his allegations had led to affect the goodwill of the Opposite Party. The Opposite Party No. 1 strongly believes that the complainant has malicious intent to come up with such allegations and to cause inexplicable losses to the Opposite parties.

 

10. The present complaint herein not only deserves a dismissal for misusing the provisions of law but must also warrant the imposition of heavy costs on the complainant for such mischievous and irresponsible acts as a mark of example to such other dubious consumers, who leave no stones unturned to take unwarranted benefit of equity jurisdiction.

 

11. A perusal of the complaint clearly shows the real intentions of the client.  Since the device was under warranty, the AASP had replaced the device twice under warranty and thereafter the complainant never approached the AASP anytime and there is no question of causing deficiency in service on the part of the opposite parties. There is no shared evidence produced by the complainant to show that Apple had assured that it will replace the device beyond the warranty policy or the device was defective within the warranty policy. Hence the opposite party No.1 is not attributable for any sort of refund/replacement and compensation to the complainant.

 

3. That a rejoinder was submitted by the complainant to the reply of OP No.1 on 07-02-2018. Thereafter despite various opportunities, OP No. 2 and OP No. 3 did not appear, hence proceeded ex-parte vide order dated 24.07.2018.

 

4. The complainant has filed his evidence by way of the affidavit affirming the facts alleged in the complaint on 24/07/2018.

 

5. Thereafter OP No.1filed aAffidavit by way of evidence on 15/10/2018. Thereafter the matter was adjourned for filing of written arguments on behalf of both parties. Accordingly, OP no.1 filed written submissions on 23/01/2019 and the matter adjourned for filing written submissions on behalf of the complainant.

 

6. The complainant filed his written submission on 6.05.2019. Finally, oral arguments were heard on 05-04-2022. We have carefully gone through the record of the case and have heard submissions of the complainant.

 

7. Ld Counsel for the Complainant argued that the opposite party stated that the entire fault is from the complainant’s side, which is factually incorrect. Especially when the device is being unboxed at the office of opposite party no.2 and they are encountering the same problem in the device. It clearly shows that the device was having a manufacturing defect.

 

8. Further, the opposite party stated that no evidence has been provided, which is incorrect. The evidence has already been submitted to the commission and the opposite party as well, which contains a video showing the display making a clicking sound, which proves that all the handsets were defective. This does not need an expert’s opinion when it’s being clearly seen in the video.

 

9. The complainant has submitted videos as evidence that clearly show the issues mentioned. It has already been submitted in the court and to the opposite party 1 as well to support the complaint made by the complainant. Since the video clearly shows the defects, it does not need any expert’s opinions.

 

10. Learned counsel for OP No.1 argued that there is no deficiency in service on the part of OP No.1, whereas Complainant requested several times to get his mobile phone set replaced but the complainant herself refused to accept the same and insisted respondent refund the amount back. There is no merit in the Complaint and prayed to dismiss the Complaint with costs.

 

11. Admittedly, the complainant purchased anI-phone6 32 gbbearing IMEI No.359220070657581 for the cost of Rs.30,000/- from opposite party No.3 marketed by opposite party No.1 vide invoice dated 1.04.2017 exhibited as Ex.CW1/a. Ex.CW1/b (colly)are the Service Record/job sheet dated 01/06/2017,05/06/2017, 20/06/2017, 13/07/2017, which shows that the mobile set was under warranty and the fault describes as a 'display pop up issue'. Thephone was replaced under the Jobsheetshowing repair close time as 19.07.2017, As perthe Jobsheet showing inward date as of 13/07/2017 and showing repair close time as of 19/07/2017, the replaced mobile set was again defective and the complainant took the handset to Opposite party no.3, where this time also the fault was described as 'display pop up issue'. it proves that the complainant from the very beginning approached opposite parties on account of the defective set. It has also been mentioned in the complaint and the jobsheet dated 13/07/2017 that the defective device was delivered to herein replacement. Vide jobsheet dated 13/07/2017 complainant has specifically stated that the authorized opposite party no.3 had given him the endorsement certificate as its display pop up issue. But when he contacted the toll-free number of opposite party No.1, the executive told the complainant that this time they will not replace this product. Opposite party No.1 stated in its reply that the complainant did not again offer the mobile set for replacement because now the handset was out of warranty. However, it admitted that thrice the subject mobile handset was replaced on 05.06.2017, 09.06.2017 and 24.06.2017 which itself makes it apparent that inherently defective handset were given to the complainant time and again.
12. In our opinion, a person purchases a mobile handset, with a view to using the same, so that she/he could communicate with her/his relations, friends, and other persons acquainted with her/him, frequently. The mobile handset is the most important mode of communication whcih itself makes it apparent that inherently defective handset were given to the complainant time and again.

 

13. In the instant case, the complainant was supplied a defective mobile set subsequently. One can imagine the plight of the purchaser that he opened the box containing the mobile set supplied by the opposite parties and found it defective. he visited the Opposite party no.3 wherein they declared the set defective. Again a mobile set was supplied in replacement which was again found defective. The complainant again visited the Opposite party no.3 wherein they verified that the replaced mobile phone is defective. again he requested for replacement/refund. The opposite parties declined the request. It is not the case that after using a mobile phone for a reasonable period a defect was developed in the set. In this case, the mobile phone supplied was defective inherently. Least of all the opposite parties should have doubly checked the replaced mobile phone before delivering it to the complainant giving the high cost of Apple industry phones as compared to all other company’s mobiles in the market.

 

14. It is a case of unfair trade practice and deficiency in service where the opposite parties are supplying defective products again and again and also refused to return the amount received.

 

15. In view of the above, the complaint filed by the complainant is allowed and opposite parties No.1 & 2 are held liable jointly and severally and are directed:-

1. To refund the cost of the mobile phone Rs.30,000/- to the complainant within 30 days from the date of receipt of a certified copy of the order. However, the complainant was required to surrender the defective mobile phone, in question, to any of the OPs within 7 days from the date of receipt of the certified copy of thisorder.
2. To pay compensation for mental harassment and agony of Rs.15,000/- and litigation expenses of Rs.5,000/- to the complainant within 30 days from the date of receipt of a certified copy of thisorder.

 

16. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.

 

17. Let a copy of this order be sent to each party free of cost as per Regulation of the Consumer Protection Regulations.

 

18. File be consigned to record room.

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President