Order dictated by:
Smt.Vinod Bala, Presiding Member
1. The complainant has brought the instant complaint under section 12/14 of the Consumer Protection Act, 1986 on the allegations that the Apple India Private Ltd. ( for sake of brevity ‘Apple’) being a Multi National Company based in USA, manufactures and deals in cellular phones in India and rest of the world. The complainant has purchased cellular phone Model Iphone-6 manufactured by Apple for Rs.32,000/- on dated 20.02.2017 from Mohindra Mobile World against invoice no.10173. It is alleged that surprising within one month of purchasing the handset started experiencing various complications and issues apropos its functioning and the same has been intimated to the Company (Apple) vide e-mail dated 23.05.2017. The complainant time and again approached Customer Care Helpline and thereafter visited service centre wherein the handset has not been fixed properly, resultantly it again stopped functioning and Company has been duly intimated vide e-mail dated 16.06.2017 and 28.09.2017. Being in imminent need of handset complainant again approached the service centre whereas surprisingly the representative denied any assistance and asked that the problem encountered by him is not covered under the warranty policy, henceforth such a careless, casual & negligent act and conduct of Apple and service centre squarely reveals insensitive and lackadaisical approach towards his grievance. Being infuriated, the complainant lodged the present complaint before this Forum. The complainant also sent a legal notice dated 20.11.2017 vide registered post. But to no effect. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the opposite parties to pay Rs.32,000/- as invoice price of the defective handset, to pay Rs.29,900/- as invoice price of the new handset, to pay Rs.15,000/- as compensation for causing mental agony and harassment alongwith interest till its realization.
b) To pay Rs.15,000/- as litigation charges.
c) And to take punitive and deterrent action against the errant company.
Hence this complaint.
2. Opposite Party no.1 appeared through counsel and contested the complaint by filing written statement taking preliminary objections therein inter alia that at the outset, it is respectfully submitted that the contentions, submissions and allegations mentioned therein are incorrect and are inconsistent with the truth and have been stated in order claim and gain illegally; that the present complaint is a malafide one, devoid of merit and contradictory to the established principles of law. The instant complaint has been devised to mislead this Forum. It is submitted that it is a common market principle and also and established position of law that consumers who wilfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Consumer Protection Act. To be specific, when consumers cause damage to products by external factors which are not associated with the manufacturing/inherent condition of the product and such acts which disregard the warranty policies of manufactures (in the instant case “Warranty”) cannot claim relief under the Consumer Protection Act. It is stated that the provisions and terms of the Apple Warranty specifically exclude damaged products which is the case in the present matter. It is further submitted that in the present case the complainant has used the iPhone negligently and damaged it, hence it cannot serviced/replaced under warranty; that in the present case the few prefatory facts are necessary for unfolding the sequence of events that followed after the complainant purchased the said iPhone6 bearing serial no.FFMSPDY2G5MN from opposite party no.3 who is not the authorized dealer/reseller of opposite party no.1 on 20.02.2017. The complainant approached the opposite party no.2 for getting iPhone repaired from the issues regarding battery draining, unable to search contact, device freezing in the device. The opposite party no.2 who is the authorized service provider inspected the said damaged iPhone and found that there was black spot on the device which results to accidental damages. The opposite party no.2 advised the complainant that accidental damages are not covered under the warranty provisions as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause. Hence the device was rendered out of warranty. Accidental damages are strictly not covered under the warranty prescribed by opposite party no.1 The complainant was informed that he has violated the terms and conditions of the opposite party no.1 and due to this his iPhone was out of warranty and could not be repaired under warranty. The opposite party no.2 offered out of warranty paid repair for the said iPhone, however the complainant declined and took his iPhone back. It is submitted that the complainant has failed to produce any evidence in support of his claims against opposite party no.1 that there was deficiency in service or unfair trade practice on the part of opposite party no.1 The warranty issued by opposite party no.1 is violated by the complainant, as the opposite party no.1 found the complainant’s iPhone to be damaged due to accident and out of warranty as the device failed to pass VMI (Visual Mechanical Inspection) test; that the complainant is guilty of materially concealing and suppressing material facts and has approached this Forum with unclean hands with the sole intention of deceiving this Forum. It is specifically submitted that the complainant’s suppression and concealment is evident from the fact that he himself damaged his iPhone and he is solely attributable to his own actions which are in breach of the terms of the Apple Warranty. Further submitted that it is a settled position of law that mere bald allegations are not 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 admission on part of the complainant brought on record by the opposite party no.1 in this case, which ex-facie squarely contradict the allegations of the complainant. 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. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. Opposite party no.2 appeared through their authorized representative Sh.Paras Mehra and contested the complaint by filing written statement taking certain preliminary objection therein inter alia that at the very outset they empathically denies all the allegations levied against them. They agrees that complainant may have visited the store around May, 2017 with some software issues, which was duly rectified in no time and OK handset was handed over to complainant as per this satisfactions same day when the complainant visited opposite party no.2 with some software issues, which was duly rectified in no time and OK handset was handed over to complainant as per his satisfaction same day when the complainant visited opposite party no.2. The complainant never visited the opposite party no.2 with any of the problems after the first visit. Opposite party no.2 only came to know about his problems only when he received summons of this Forum. The complainant never made copy of e-mails exchanged between him and Apple India Ltd. to opposite party no.2 with any of his grievances of any phone. It is submitted that whenever any person visits opposite party no.2 and opposite party no.2 needs to keep the phone more than a day for rectification with bigger issues, opposite party no.2 issues Job Card. A copy of job card is also given to customer who submits phone for any technical glitches as for record for any of his future communication regarding his phone status, whereas no job card was ever made in this case. Complainant is making false and baseless allegation without even visiting the opposite party no.2 with malafide intentions. The complainant visited only once i.e. may be around May, 2017 and his phone was rectified as per his satisfaction and after that complainant never visited the opposite party no.2. It is further submitted that as per opposite party no.2 communication with Apple India Ltd, it is stated that complainant phone has now issue of phone screen being damaged and screen damage is not covered under warranty terms and same is intimated to complainant. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
4. Opposite party no.3 appeared in person and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus-standi; that there is no deficiency in service on the part of answering opposite party; that the complainant has purchased the mobile and it is the responsibility of the service centre to get it repaired. The complainant did not come to the shop of answering opposite party, rather he has filed false complaint. On merits, all other allegations made in the complaint have been denied and and a prayer for dismissal of the complaint with cost has been made.
5. But however, after filing their respective written versions, none has put in appearance on behalf of Opposite Parties No.2 and 3, hence Opposite Parties No.2 and 3 were proceeded against exparte. But, at the stage of arguments, Sh.Onkar Singh, Advocate who is also the counsel of Opposite Party No.1, had filed power of attorney on behalf of Opposite Party No. 2 and also filed an application to allow him to appear on behalf of Opposite Party No. 2 at this stage, hence in the interest of justice, Sh.Onkar Singh was allowed to argue the case on behalf of both Opposite Parties No.1 and 2.
6. In his bid to prove the case, complainant tendered his duly sworn affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C6 and closed the evidence.
7. On the other hand, to rebut the evidence of the Complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.Priyesh Poovanna Country, Legal Officer Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/5 and closed the evidence on behalf of Opposite Party No.1.
8. We have heard the ld.counsel for the complainant and ld.counsel for Opposite Parties No.1 and 2 and have carefully gone through the evidence on record.
9. Ld. counsel for complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant has purchased cellular phone Model Iphone-6 manufactured by Apple for Rs.32,000/- on dated 20.02.2017 from Mohindra Mobile World against invoice no.10173, copy of the bill/invoice is Ex.C2. However, within one month of purchase of the handset started various complications and issues apropos its functioning and the same has been intimated to the Company i.e. opposite party no.1 vide e-mail dated 23.05.2017, copy of the mail accounts for Ex.C-3. The complainant time and again approached Customer Care Helpline and thereafter visited service centre wherein the handset has not been fixed properly, resultantly it again stopped functioning and opposite party no.1 has been duly intimated vide e-mail dated 16.06.2017 and 28.09.2017, copies of the mails account for Ex.C4 and C5. Being in imminent need of handset complainant again approached the service centre whereas surprisingly the representative denied any assistance and asked that the problem encountered by him is not covered under the warranty policy, henceforth such a careless, casual & negligent act and conduct of company and service centre squarely reveals insensitive and lackadaisical approach towards his grievance. The complainant also sent a legal notice dated 20.11.2017 vide registered post. But to no effect, copy of which is accounts for Ex.C6 and hence the aforesaid act of opposite parties amounts to deficiency in service on their part.
10. On the other hand, ld. counsel for Opposite Parties No.1 and 2 has repelled the aforesaid contentions of ld. counsel for complainant on the ground that the complainant has used the iPhone negligently and damaged it, hence it cannot serviced/replaced under warranty. In the present case few prefactory facts are necessary for unfolding the sequence of events that followed after the complainant purchased the said iPhone 6 from opposite party no.3 who is not the authorized dealer/reseller of opposite party no.1 on 20.02.2017. The complainant approached the opposite party no.2 for getting iPhone repaired from the issues regarding battery draining, unable to search contact, device freezing in the device. The opposite party no.2 who is the authorized service provider inspected the said damaged iPhone and found that there was black spot on the device which results to accidental damages. The opposite party no.2 advised the complainant that accidental damages are not covered under the warranty provisions as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause. Hence the device was rendered out of warranty. Accidental damages are strictly not covered under the warranty prescribed by opposite party no.1 The complainant has violated the terms and conditions of the opposite party no.1 and due to this his iPhone was out of warranty and could not be repaired under warranty. The opposite party no.2 offered out of warranty paid repair for the said iPhone, however the complainant declined and took his iPhone back. The warranty issued by opposite party no.1 is violated by the complainant, as the opposite party no.1 found the complainant’s iPhone to be damaged due to accident and out of warranty as the device failed to pass VMI (Visual Mechanical Inspection) test. The complainant’s suppression and concealment is evident from the fact that he himself damaged his iPhone and he is solely attributable to his own actions which are in breach of the terms of the Apple Warranty. Hence there is no deficiency in service and unfair trade practice on the part of opposite parties.
11. It is not disputed that the complainant has purchased the Mobile Set in question from opposite party no.3, which is manufactured by opposite party no.1. It is the case of the complainant that within one month of purchase of the handset started various complications and issues apropos its functioning and the same has been intimated to the Company i.e. opposite party no.1 vide e-mail dated 23.05.2017, copy of the mail accounts for Ex.C-3. The complainant time and again approached Customer Care Helpline and thereafter visited service centre wherein the handset has not been fixed properly, resultantly it again stopped functioning and opposite party no.1 has been duly intimated vide e-mail dated 16.06.2017 and 28.09.2017, copies of the mails account for Ex.C4 and C5. In this regard, the complainant has also served legal notice upon the Opposite Parties, copy of which is also placed on record as Ex.C6, but none of the Opposite Parties has dared to redress the grievance of the complainant. Copy of Apple One (1) Year Limited Warranty produced by Opposite Party No.1 itself shows that the product in question is having atleast one year warranty. But however, the Mobile Set in question became defected within one month from the date of its purchase. And on it, the complainant approached opposite party no.2 i.e. service centre for getting his mobile repaired, but they refused to repair the mobile set of the complainant on the ground that his mobile hand set was found to be damaged due to accident, as during the inspection by opposite party no.2 a black spot was found on mobile phone in question, which shows the accidental damages and accidental damages are not covered under the warranty conditions. But it is not expected from such like Apple Company to give such vague and rude answer to the request of the complainant for the redressal of his grievances in the warranty period of one year. Moreover, Opposite Parties No.1 and 2 has failed to give any specific reason for the redressal of the genuine grievance of the complainant, only except denial of allegations made by the complainant in his complaint as well as in his duly sworn affidavit Ex.C1 and in this way, the Complainant is suffering badly in his daily interactions with his clients who himself is an advocate by profession due to the defect of Mobile Set in question. The main contention of the Opposite Parties is that the complainant himself damaged his iPhone and he is solely attributable to his own actions which are in breach of the terms of the Apple Warranty. Hence there is no deficiency in service and unfair trade practice on the part of opposite parties, but this contention of the ld.counsel for Opposite Parties No.1 and 2 can not be admitted as true because why the complainant who is an advocate by profession, would damage his iphone knowingly and thereafter, what was the need for the complainant to file the present complaint by spending huge money. It is not disputed that the Mobile Set in question started giving problem within warranty period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost..”
Not only this, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has also held that
“ the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
Not only this, as contended by the ld.counsel for the complainant that due to non redressal of his grievance by the Opposite Parties, in these circumstances, the complainant was compelled to purchased a new Mobile Set by paying a sum of Rs.29,900/- and such loss could not be compensated lateron in the shape of money, In such a situation, there is definitely deficiency in service on the part of the Opposite Parties and all the Opposite Parties are jointly or severally liable to replace the Mobile Set in question with new one of same make or model or to refund its price alongwith reasonable rate of interest. But however, the Complainant has claimed the compensation amounting to Rs.15,000/- in this regard besides Rs.15,000/- as litigation expenses and Rs.29,900/- as costs of the new purchased Mobile Set besides Rs.32,000/- as refund of the Mobile Set in question. But however, the claim for compensation amounting to Rs.15,000/- in this regard besides Rs.15,000/- as litigation expenses and Rs.29,900/- as costs of the new purchased Mobile Set besides Rs.32,000/- as refund of the Mobile Set in question, is concerned, the same appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded compensation to the tune of Rs.2,000/- and we award the same accordingly. Besides this, the complainant is also entitled to litigation expenses to the tune of Rs.1,500/-.
11. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed against all the Opposite Parties jointly or severally. All the Opposite Parties are jointly or severally directed to replace the Mobile Set in question with new one of same make and model within one month from the date of receipt of copy of this order, failing which the Opposite Parties shall refund the price of Mobile Set in question i.e. Rs.32,000/- alongwith interest @ 6% per annum from the date of passing the order until full and final payment. Opposite Parties are also directed to pay Rs.2,000/- as compensation for causing mental tension and harassment to the Complainant besides Rs.1,500/- as litigation expenses. Compliance of this order be made by Opposite Parties within 30 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Forum under section 25/27 of the Consumer Protection Act, 1986. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
