BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.297 of 2019
Date of Instt. 30.07.2019
Date of Decision: 31.07.2023
Angadpreet Singh son of Sh. Tejinder Singh, resident of A/M-124, Shalimar Bagh, New Delhi.
..........Complainants
Versus
1. Apple India Private Limited, No.24, 19th Floor, Concorde Tower- C, UB City, Vital Malya Road, Bangalore-560001 through its Managing Director/Manager/Concerned Authority (email:Bangalore admin@apple.com
2. IQOR Global Services India Pvt. Ltd., F-2, First Floor, MBD Mall, BMC Chowk, Jalandhar-144001. Email: amsapple.jldr@iquor.com
3. Amazon Seller Service Pvt. Ltd., Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (w), Bangalore- 560055, Karnataka, India through its Managing Director/Manager/Concerned authority
email:amznindpr@amazon.com
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Abhay, Adv. Counsel for the Complainant.
Sh. Bharat Mahajan, Adv. Counsel for the OP No.1.
OP No.2 exparte.
Sh. Nakul Kapoor, Adv. Counsel for the OP No.3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased iphone 6s, 64gb Gold from OP No.3 for an amount of Rs.46,290/- on 26 October, 2016. Within first 10 days, complainant experienced unexpected behavior from the iphone wherein the phone would keeps on restarting again and again and contacted apple support over the phone. They told the complainant that the phone is defective and as such he shall not use it and submit the phone to the nearest service centre. Complainant was unhappy over receiving such defective phone. Over this, complainant submitted his device to the nearest service centre at B2X Service centre, New Delhi and after 4-5 days, service centre provided him with a replaced phone. After few months complainant experienced microphone defect on the iphone and again visited the same service centre, but the service centre just cleaned the microphone over the phone and gave it back to the Complainant alleging that the phone has been serviced and needs no repair. Again after few days, complainant kept on experiencing the same defect and for which he visited the service centre again and asked them to repair the microphone as he is experiencing the defect again and again. The service centre again did not bear to repair the phone and gave back the phone to the complainant by performing a software restore and also by again cleaning the microphone. Complainant was very unhappy for getting such deficient services. The complainant continued to have such the defect and as such again visited the service centre. This time service centre told the complainant that now his phone is out of warranty and as such he will have to pay about 15,000 rupees to get the defect resolved as the display of the iphone needs to be changed in order to fix the microphone issue. Complainant had a heated arguments with the service centre as he asked them to fix the issue considering the phone under warranty as he is having the defect since the phone was under warranty and it is their deficient service that they could not fix it at that time. The service centre refused to entertain the complainant and kept on asking money from him. Aggrieved of such deficient services, complainant served a Legal Notice through his Lawyer to the OP No.1. And after receiving of the Legal Notice from the complainant, Kashif Jamil contacted complainant stating himself to be the Executive Relation EMEIA working for OP No.1 and requested complainant that he will investigate the matter and also requested the complainant not to file any consumer complaint as he will resolve the issue. Complainant shared job sheets of getting deficient services to Kashif. After investigating the matter, Kashif again contacted complainant and told him that he has gone through the entire matter and took the responsibility of deficient service provided to complainant by OP No.1 and as such he provided to complainant a brand new iphone 6s with 1 year standard warranty on 14th April, 2018 and assured complainant that it will not have any defect and as such he can enjoy the new iphone. The complainant kept on using his new iphone, but in the month of January, complainant experienced sound defect on the phone and also the phone gave warning as the battery needs to be serviced and complainant was very upset as he cannot use the phone provided to him properly and as such he again visited the service centre IQOR Global at Jalandhar and they serviced the phone and gave it back to the complainant saying that it has been fixed but again after few days complainant experienced the same issue and as such bottom speaker of the iphone did not work and also phone kept on giving the alarm to complainant as Battery needs to be serviced. Complainant went to the IQOR Global service centre where they diagnosed the iphone of complainant and told complainant that the diagnostic report of his iphone shows that speaker and battery of the iphone is failing and as his phone needs to be repaired or replaced as the phone is under warranty but they cannot assure that what needs to be done as they are supposed to sent the phone further to Repair Centre at Bangalore as they will perform the repair or replacement as the service centre engineer does not have any authority to do it and they asked complainant that it will take about 10-12 days, complainant was shocked to hear that it will take so long to get the phone repaired and asked service centre that why do they have engineers at service centre, if they cannot even perform repairs and it is totally time wasting sending the phone to Repair centre and also the repair centre engineers do not talk to customer and performs repairs on their own as needed. Complainant was angry over such repair policy of the company as there is not any transparency and no interaction with the customer seeking repair. And complainant also asked service centre to perform repair at Jalandhar itself but they refused and sent the phone to Bangalore. After 7-8 days, complainant got call from service centre engineer and he told complainant that Repair Centre is sending the phone back to them and they will receive it after 3-4 days and further told that the defect has been fixed as the engineer at Repair Centre at Bangalore has changed the display of the iphone. Complainant was shocked as the battery and speaker needs to be repaired and they did not perform repair over that and rather changed the display of the phone which did not had any issue. Complainant asked the engineer at service centre, but he replied that he even cannot ask the people at repair centre, Bangalore about the repair but told that they have completely diagnosed and internally checked the phone and performed repair which was needed and asked complainant to collect the phone from them after 3-4 days. The complainant talked to senior advisor of Apple India, i.e. OP No.1 and raised his issue stating that they have not repaired the battery and the speaker and even wasted his 10 days already. The senior advisor told the complainant that repair centre would not send the phone back to service centre without properly repairing and further told that there must not have any issues with it as they would fully diagnose and check the phone internally and after that only they will send the phone back. However, the senior advisor of OP No.1 told complainant that he shall not collect the phone from service centre i.e. OP No.2 untill they will contact the service centre and confirm that the defect has been resolved. After 3 days, complainant got a call from senior advisor wherein he till complainant that service centre has received the phone from repair centre Bangalore and on the asking of senior advisor of OP No.1, service centre i.e. OP No.2 carried out diagnostics on the phone and wherein the battery and the speaker of the phone has again failed. The complainant contacted the service centre i.e. OP No.2 and asked about the repair. The OP No.2 gave the confirmation to the complainant that the defects are still there and now they will again send the phone back to repair centre Bangalore so that they will again consider the defect on the phone and repair it accordingly as the defect is still there. Complainant was being mentally harassed and tortured by the OPs No.1 and 2 by not providing adequate service and repeatedly failing to provide working phone to the complainant. And further the delay beyond the period agreed by the complainant to get the phone repaired by OP No.1 caused a great mental agony and harassment to the complainant. The senior advisor of OP No.1 and the service centre i.e. OP No.2 told the complainant that he shall not get the phone from the service centre and let them again send the phone back to repair centre in order to get it repaired. Upon this assurance by OPs No.1 and 2, complainant never took the delivery from the service centre and waited for further time as asked by the OPs No.1 and 2. Again after 5 days, complainant got a call from OP No.2. The engineer from OP No.2 told the complainant that the Repair centre at Bangalore has found something unauthorized modification in the phone and now they will not repair it under warranty and complainant will have to pay the price of the iphone to get it replaced. Complainant was shocked to see the response of the repair centre of OP No.1. Complainant argued with OP No.2 that neither he done any modifications to the phone and nor it is possible. But the OP No.2 kept on reiterating the same thing and kept on demanding money from the complainant in order to get it replaced. The complainant asked the OP No.1 to look into the matter and stop harassing him by doing such unfair practices and false representation of alleging any modification to not provide service and also to fetch money from complainant in such illegal ways. Complainant even asked the OPs No.1 and 2 that Had there been any unauthorized modification in the phone, the OPs No.1 and 2 could have said that in the first repair attempt when they repaired the phone and infact at the first repair attempt repair centre of OP No.1 sent a letter to the complainant along with the repair stating that we have fully diagnosed the phone of complainant and repaired what was needed. This clearly shows the bad intentions of the OPs No.1 and 2 to fetch money from complainant illegally by alleging such unauthorized modification which was not even there and had it been there the OPs No.1 and 2 could have found that and said that during the first time when it was sent to them for repair. The most interesting and important thing would be that complainant after first repair attempt by OPs No.1 and 2, never took the delivery of the phone from the respondent no. 2 and the phone was there in the custody of OPs No.1 and 2 throughout both the repair attempts wherein complainant submitted his iphone on 5 February 2019 after that the phone remained with OPs No.1 and 2 and complainant never took the delivery of the phone from the OP No.2 and the phone remained with the respondents and there is no possibility that complainant could have done any unauthorized modification in the phone as alleged by the respondents and also if there could have been any then why did not they found it at the first repair attempt and also that the service centre engineers of OP No.2 could have also found during their inspection and testing if there could have been any modification. And even when complainant asked about it that what unauthorized modification is found, then OPs No.1 and 2 denied to reveal the modification saying that it is related to their internal system and even they would not reveal it to the complainant, this also shows the intention of the OPs No.1 and 2, that even if there could have been any modification they could have also revealed it to the complainant and rather should not have denied it. And even otherwise it is also illegal that OPs No.1 and 2 were not disclosing any information which pertains to the phone of complainant and the complainant is the sole and exclusive owner of the phone. After this complainant did not paid any money and rather wrote to the CEO of Apple, after that Matilda Johannson who told herself to be Executive of CEO asked the complainant to wait as she will look into the matter. After this, complainant got a call from Matilda and she told complainant that he will not have to pay anything as she investigated the matter and found that complainant never took the delivery of the phone and possibility of the unauthorized modification do not arise. As such, after a period of 21 days, and after going through so much of calls and emails got the phone on 25th February 2019. On receiving the iphone from OP No.2 the OP No.2 told complainant that his phone is under warranty till 14th April 2019 and as such he can buy warranty extension plan for an amount of Rs.4500/- by which the warranty of the phone can be extended to one more year. Complainant was interested in buying and told the OP No.2 that he will buy it after 4-5 days. In the mean time, complainant got to know that the phone provided to him by the OP No.1 is APAC locked and as such complainant was getting issue to get the device activated every time it would put the sim in the phone. And also found that the earpiece i.e. the receiver of the phone is also not working and the phone is overheating as well which is dangerous to the life and property of the complainant. Upon this, complainant again called apple support telephone to get the issue resolved wherein the senior advisor again escalated the issue of the complainant to the internal engineering team but got a response that his phone has been unlocked and as far as heating issue and receiver issue is concerned, he will again have to visit the service centre. The complainant again visited the service centre i.e. OP No.2 where the engineer again confirmed the defect on the phone and told complainant that they will again have to send the phone to Bangalore to repair centre to get the issue fixed. OP No.2 also told the complainant that the company i.e. OP No.1 has revoked the warranty of the phone and he will not be able to purchased one year extended warranty as well. Complainant was surprise to see that now the company has revoked the warranty of the phone and OP No.2 told the complainant that he has 90 days repair warranty but cannot buy the extended warranty as OP No.1 has revoked it. The complainant again contacted that OP No.1 through Matilda and asked that how can his warranty be revoked and also asked refund of the phone as he is getting deficient services from the OPs No.1 and 2 and it is his right to claim refund of it. OP No.1 through Matilda, i.e. executive of CEO of Apple told the complainant that their company did not provide any warranty to the phone of complainant and such the phone given to him by Kashif, on 14th April had only 90 days warranty and as such the phone does not have warranty and also that they will not refund the price paid by complainant. By doing all such acts and the conduct of the OP No.1, it is clear that they are intentional cheating complainant by such illegal ways and resulting into mentally harassing and torturing the complainant. This act and conduct of OPs No.1 and 2 caused a great mental agony to the complainant as well as financial loss to 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 pay the cost of the iPhone i.e. Rs.42,290/-, compensation of Rs.1,00,000/- and litigation expenses of Rs.10,000/- with interest @18% per annum.
2. Notice of the complaint was given to the OPs, but despite service OP No.2 did not appear and ultimately OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and 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 submitted that it is a common market principle and also an established position of law that consumers who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Consumer Protection Act, 1986. 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 which acts are in complete disregard to and in breach of the warranty policies of manufacturers (in the instant case "Warranty") cannot claim relief under the Consumer Protection Act, 1986. It is stated that the provisions and terms of the Apple Warranty specifically exclude damaged products which is the case in the present matter. On merits, it is admitted that the complainant purchased the iPhone and it is also admitted that the complainant’s mobile was found to be damages and due to that reason, the mobile could not be replaced or repaired, 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.
3. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant does not fall within the definition of consumer under the Consumer Protection Act, 1986. The complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL for the purchased product. Further, the amount paid by the complainant is against an invoice raised by the seller of the product and the OP No.3 has no claim over the said amount. The goods have been bought by the complainant from an independent third party seller i.e. M/s Amiable Electronics Pvt. Ltd., selling its products on the website operated by OP No.3. Accordingly, the complainant does not fall within the definition of consumer vis a vis the OP No.3. On merits, all the 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.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the complainant very minutely.
7. The complainant has proved the Invoice Ex.C-1, vide which he has purchased the mobile for Rs.46,330/- through Amazon i.e. OP No.3. This mobile was purchased on 26 October, 2016. The complainant has alleged that within 10 days, he found defect in the iPhone and he contacted the service centre. His mobile was replaced by the OPs. This fact has been admitted by the OP No.1 in Para No.2 of their para wise reply. The complainant has produced on record the document Annexure-1 to show that the mobile was replaced and the issue was resolved. The replaced mobile again was found defective and he contacted the service centre. The service centre returned the mobile by performing a software restore and cleaning the microphone, but his defect was not removed, but ultimately, when he was not satisfied, the mobile was again replaced vide job sheet Annexure A-2 dated 14.04.2018 with one year warranty. As per the Annexure-2, the unit was replaced and issue was resolved. Again, the complainant found the defect in the new phone replaced by the OP No.1. Again, he contacted the OP No.1 and his phone was again replaced for third time as per Ex.C-2. He contacted the OP on 05.02.2019 and as per the emails produced alongwith the written arguments dated 25.02.2019, he informed the OP that he got the iPhone, meaning thereby that again the phone was replaced on 25.02.2019 as per Ex.C-2. Though, the factum of replacement has been denied by the OP No.1, but the documents produced by the complainant proved that the iPhone of the complainant was replaced thrice from October, 2016 i.e. from the initial purchase till 25.02.2019. The complainant has further alleged that again he found defect in the phone and contacted the service centre of OP No.1, but they refused to take the phone rather alleged that the iPhone of the complainant is damaged, therefore, his warranty was revoked.
8. The OP No.1 has alleged in the written statement that the iPhone was damaged as a result of the complainant’s own negligence and fault and once the damage is caused by the consumer/customer, the warranty is revoked as per the terms and conditions of the agreement between the complainant and the company. It has further been alleged by the OP No.1 that the liability of the manufacturer arises only when there is inherent defect in the product when the product was manufactured, but the manufacturer cannot be held liable if the damage is caused by the customer himself. The OP has relied upon the terms and conditions.
9. The complainant has produced on record the Service Summary of Apple Care Service Ex.C-2/1, wherein it has been mentioned that his repaired iPhone is covered by 90 days service warranty and as per the chatting Ex.C-3, there was 87 days warranty left when the phone was found defective and there was a chatting between the official of the OP No.1 and the complainant. As per Ex.C-4, the warranty was uptill April 14, 2019.
10. The OP has relied upon the terms and conditions of the warranty. Perusal of the Ex.OP-1/2 shows that on page 3 of the warranty, it has been mentioned that a replacement part or product including user installable part that has been installed in accordance with instructions provided by Apple assumes the remaining warranty of the Apple Product or 90 days from the date of replacement or repair.
11. It is admitted by the OPs that the Iphone was replaced on 25.02.2019 for the third time. Now they are alleging that since it was damaged, therefore, warranty was revoked, but there is no document on the file or job sheet, if any, issued by the service center of OP No.1 to show that the Iphone was taken from the complainant by the service provider and after inspection, they found it damaged, therefore, the warranty was cancelled. No document has been filed by the OP to prove this fact. Though, it is well settled law that the complainant is to stand on his own legs to prove his case. The complainant has categorically alleged that when he contacted the OP, they refused to take the phone and repair the same. The averment of damage allegedly caused to the phone was raised by OP No.1, therefore, the onus shifted upon the OP No.1 to prove that since the damage was caused to the phone by the complainant himself, therefore, the warranty was revoked, but there is nothing on the record. Once the damage has been alleged by the OPs, therefore, the expert opinion by the complainant is not required. The complainant has alleged that despite the emails and correspondence with the OP No.1, he was not provided services by the OP No.1. Therefore, there is deficiency in service and unfair trade practice as the iPhone was purchased by the complainant and the same was replaced thrice due to defect in the iPhone. This clearly shows the harassment to the complainant by the OPs in providing the defective phone time and again and not providing the services for which the OP No.1 is meant for as the complainant has purchased the Iphone from the OP No.1 through OP No.3 and is service provider. OP No.2 is a service centre, who has harassed the complainant time and again. Lastly did not receive the iPhone for repair. In the Invoice Ex.C-1, the name of the seller has been mentioned and OP No.1 is Manufacturer Company. There is no fault of the OP No.3 as the product has been bought by the complainant from an independent third party seller i.e. M/s Amiable Electornics Pvt. Ltd., selling its product on the website operated by OP No.3. Thus, there is no deficiency in service on the part of the OP No.3.
12. In view of the above detailed discussion, the complaint of the complainant is partly allowed qua OP No.1 and OP No. 2 and dismissed against OP No.3. The OP No.1 and OP No. 2 are jointly and severally directed to return the price of the Iphone i.e. Rs.46,290/- with interest @ 6% per annum from the date of defect. Further, OP No.1 and OP No. 2 are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
31.07.2023 Member Member President
