| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.435 of 2017 Date of Instt.09.11.2017 Date of Decision:16.03.2021 Gagandeep Singh aged about 32 years son of ShriHarcharan Singh, resident of H.No.18, New G.T.B. Nagar, Jalandhar. ..........Complainant Versus 1. Apple India Pvt. Ltd., 19th Floor, Concorde Tower-C, U.B. City No.24, Vittal Mallya Road, Bangalore-560001. 2. B2X Service Solutions India Pvt. Ltd., Ground Floor, 182-R, Model Town, Jalandhar. 3. M/s Akash Mobile Mart, 6-B, Model Town, Main Market, Jalandhar. ….….. Opposite Parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. Gagandeep Mehta, Adv. Counsel for the Complainant. Sh. Aditya Jain, Adv. Counsel for the OP No.1. Sh. R. K. Bhalla, Adv. Counsel for the OP No.2 Sh. UmeshOhri, Adv. Counsel for the OP No.3. Order Kuljit Singh(President) The instant complaint has been filed by the complainant, wherein alleged that the complainant had purchased a device, Apple Mobile Iphone 6s Gold having IMEI No.359211071622278 vide Bill No.118 dated 23.09.2017 of Rs.34,000/- duly manufactured by OP No.1, from OP No.3, who is the authorized retailer of the OP No.1, with a warranty of one year. The OP No.1 is the manufacturer of Apple Iphone and OP No.2 is approved and authorized service centre and under the care and custody of supervision and the administrative control of OP No.1. That since the purchase of the above said iPhone the network of the said iphone was not working properly, the display of the phone used to show “no service” at regular intervals. On 29.09.2017 the complainant before approaching the OP No.2 contacted the service provider believing that the said defect could be with the SIM issued by the service provider. The complainant had visited the Idea Showroom situated at Link Road, Near Guru Gobind Singh Stadium for solution of the said problem but the authorized person in the showroom have checked the SIM Card provided by the service provider and clearly told the complainant that there is no problem with the SIM, but the problem is with the device therefore, there is a problem in the device manufactured by OP No.1 as there is no fault in the SIM or in the services provided by the service provider. That the complainant had no other option, so the complainant went to OP No.2 at about 04:00 P. M. on the same day for getting his device checked, and prior to accepting the device for repair, the OP No.2 got the mobile of the complainant checked by the technician/service engineer, who was sitting behind the reception. That the technician/service engineer checked the mobile phone of the complainant thoroughly and after inspecting the device visually the technician/service engineer told the complainant that the mobile needs checked internally so advised the complainant to come on 03.10.2017 as the service centre is to remain close from 30.09.2017 to 02.10.2017 on account of Dushera and Gandhi Jyanti holidays. The engineer of the OP No.2 also assured the complainant that the said device would be repair or replaced from Bangalore. That as per the advice of the representative of OP No.2, the complainant visited the OP No.2 on 03.10.2017. The technician/service engineer of OP No.2, opened the device owned by the complainant in presence of the complainant to check any type of tampering or mishandling etc. with the device as per the policy of OPs No.1 and 2. After being satisfied that there was no tampering or mishandling or water etc. inside the mobile, the representative of the OP No.2 accepted the said mobile set of the complainant and Job Card bearing No.JAL031017389212 was issued to the complainant on 03.10.2017 at about 17:58:37 hours. The complainant was told that the defect in the mobile handset shall be removed or the device shall be replaced within a period of 11 days and expected delivery date was given to the complainant as 14.10.2017 as per the Job Card. That on 14.10.2017 the complainant received a call from the representative of OP No.2 stating that “Sir your device has been received back from Bangalore and we cannot repair or replace your device because it has been checked/opened outside”. The complainant there and then told the officials of the service centre over the phone that there was no question of getting his mobile checked/opened outside, since the same was never shown to anybody outside, therefore, the question of getting opened from anybody else prior to submitting the said set to the service centre i.e. OP No.2. Moreover, there is no question of showing the said mobile handset to anyone else does not arise as the said set is within warranty. It is evident from the bill that the said handset was purchased on 23.09.2017 from OP no.3. The device has been opened only by the technician of OP No.2 after receiving the same for repair/replacement. That the complainant again called on Apple Care Hotline number on 14.10.2017 duly mentioned on the service report. The complainant explained entire case to the executive on the phone of customer care centre, after hearing the complainant and noting down the contents by the executive of customer care of OP No.1 a case No.100322479449 was given to the complainant on the complaint made by the complainant at the said toll free number of OP No.1 i.e. till today the mobile handset of the complainant is lying with the OPs No.1 and 2 and the OPs No.1 and 2 are not giving any response to the complainant made by the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to make the payment of Rs.34,000/- to the complainant being price of the mobile and further OPs be directed to pay Rs.50,000/- on account of stress, mental tension and harassment and further OPs be directed to pay Rs.10,000/- as litigation expenses. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written statement whereby contested the complaint by taking preliminary objections that the present complaint is malafide, devoid of merit and contradicts established principles of law. The instant complaint has been devised to mislead this Forum. It is further submitted that it is a common market principle and also an established position of law that consumers who willfully destroy, damage or negligence handle a product are not eligible to claim any relief under the Consumer Protection Act, 1986. In this backdrop, it is relevant to be mentioned that in the present case, the said iPhone was found to possess unauthorized modifications which could possibly be provoked by reasons only and only contributable to the complainant who gave his iphone in question for a service to an non authorized third party service provider, as there is no possibility of such an damage under any other circumstances. It is further submitted that the complainant is also guilty of materially concealing and suppressing material facts and has approached this Forum with unclean hands with the sole intent of deceiving this Forum. On merits, it is admitted that the OP No.1 is the manufacturer of the Apple Iphone, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and there is no cause of action accrued to the complainant to file the present complaint against the answering OP. In fact, the complainant had given his mobile phone to the answering OP with the alleged complaint of no service. After collecting the phone set from the complainant, the answering OP sent the same to repair centre, duly appointed by OP No.1 for the purpose of repair of the phone set sold by OP No.1. In fact, the said service centre at Bangalore checked the phone in question and found that the same is tempered one and therefore the said company returned the phone said to the answering OP. On merits, it is admitted that the OP No.1 is the manufacture and the answering OP is authorized service centre appointed by OP No.1. OP No.4 filed its separate written reply and contested the complaint by taking simple pleas that the mobile set was purchased from OP No.3, however other averments made in this para does not relate to answering OP and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-5 and closed the evidence. In order to rebut the evidence of the complainant, the counsel for the OP No.1 tendered into evidence affidavit as Ex.OP1/A alongwith some documents Ex.OP1/1 to Ex.OP1/3 and closed the evidence. The counsel for the OP No.2 tendered into evidence affidavit as Ex.OP2/A alongwith some documents Ex.OP2/1 and Ex.OP2/2 and closed the evidence and then counsel for the OP No.3 suffered a statement that OP No.3 is just retailer, so do not want to lead any evidence. We have heard the argument of learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by counsel for the complainant, very minutely. It has been argued by learned counsel for the complainant that since the purchase of mobile in dispute, the same is not working properly and used to show No service at regular intervals. On 29.09.2017, complainant approached to OP No.2 but OP-1&2 despite keeping the mobile phone with it has failed to repair it. The complainant has been requesting the OP No.1 &2 to replace it with new one if it is not repairable. However, till date OP No.1 and 2 have not redressed the grievance of the complainant due to which the complainant has been caused great mental agony and harassment. On the other hand, the learned counsel for OP No.1 and 2 has contended that the complainant himself has caused damage to the handset by external factors which are not associated with the manufacturing/inherent condition of the product and such which act are not in complete discharge to and in breach of warranty policies of manufacturers cannot claim relief under the Consumer Protection Act, 1986. The provisions and terms of the apply warranty specifically exclude damage of products, which is case in the present matter. It is admitted that complainant approached to OP-2 on 03.10.2017. The complainant informed issues regarding network not working. The OP-2 diligently undertaken efforts to diagnoses the problem with the Iphone and after assessment of device, it found unauthorized modification. OP-2 declined service due to unauthorized modifications found on the device as it is not covered under the warranty and they informed the complainant to collect back the device but the complainant denied to collect the device. The complainant states that he approached to OP-2 on 29.09.2017 but he deliberately states he gave his Iphone on 03.10.2017. If he had approached he could have demanded the job card on the same date. On the other hand, the as per job sheet, it is clearly mentioned under Diagnosis Details: “AST run no issue of data micro inspection is pending if we find any unauthorization in the Iphone we will return the device as it to the customer”. From this, it is crystal that the mobile in dispute not opened or checked in the market except in Service Centre and fallen under the warranty. It has been clearly mentioned on the warranty card which was inside the box of the mobile that ‘Apple does not warrant against normal wear and tear, nor damage caused by accident or abuse.’ In view of this, the complainant is not entitled to any relief.In case titled as Hind Motor (I) Ltd & Anr. Tata Motors Vs. Lakhbir Singh & another 1(2014) CPJ 120 (NC), it has been laid that in case inherent defect in vehicle requiring major repairs after short span of eight months, found, then the vehicle should to be replaced, due to deficiency in services. Same is the position in this case. So by applying the analogy of law laid down in the above said case, this complaint deserves to be allowed. Consequently, this complaint is partly allowed with directions to OPs to deliver a new Iphone 6S to complainant without charging any cost from him. Further, OP No.2 by contacting OP No.1 will comply within 45 days of receipt of this order and amount of Rs.5000/- allowed on account of mental harassment as well as litigation expenses in favour of complainant and Rs.3000/- be paid in Legal Aid Fund of this Commission by the OPs No.1 & 2. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after due compliance.
Announced in open Commission 16th of March 2021 Kuljit Singh (President) Jyotsna (Member) | |
