Haryana

Panchkula

CC/375/2020

TWISHA SINGH. - Complainant(s)

Versus

APPLE INDIA. - Opp.Party(s)

TARUN GUPTA.

03 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                       

Consumer Complaint No	:	375 of 2020
Date of Institution	:	07.12.2020
Date of Decision	:	03.03.2022

 

Twisha Singh aged 35 years w/o Sh. Stephan Ganon, r/o H.No.663, Sector-25, Panchkula.

                                                                           ….Complainant

Versus

1.     Apple India, 19^th Floor, Concorde Tower C, UB City No.24, Vittal Mallya Road, Bangalore-560001 through its authorized representative.

2.     Tresor Systems Pvt. Ltd(imagine Apple Store), SCO No.36, Ground Floor, Sector-11, Panchkula through its Authorised representative.

3.     Pawan, Store Manager, Tresor Systems Pvt. Ltd(Imagine Apple Store), SCO No.36, Ground Floor, Sector-11, Panchkula.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person alongwith Sh.Tarun Gupta, Legal Aid counsel.

Ms. Jyoti Rani, Advocate for the OP No.1.

  Sh. Manjinder Kumar, Advocate for OPs No.2 & 3.

ORDER

(Satpal, President)

1.     The brief facts of the present complaint are that the complainant purchased a mobile make Apple iPhone 11 64GB white from OP No.2 amounting to Rs.66,500/- on 11.10.2020. The complainant started using the mobile phone but just after 15 days, the phone started giving problems i.e. it stopped detecting the sim card. The complainant immediately approached the OP No.2, who after being satisfied that the iPhone is having manufacturing defect, kept the iPhone on 26.10.2020 and told the complainant that they would send it to Bangalore i.e. to OP No.1 and the process would take 10 days. On 30.10.2020, the complainant received the message from OP No.2 that the iPhone has been replaced with a new one and she can come and collect the same. She got the new phone from the OP No.2 on 31.10.2020 but the new replaced iPhone again stopped working on 21.11.2020 and started giving the same problem i.e. it stopped detecting the sim card. Thereafter, the complainant called the OP No.1 at customer care number 0008001009009 and they suggested to take the refund from OP No.2 as defective phone has been sold to her by them. The details of conversation and request for refund was made to OP No.2 vide email dated 24.11.2020 but there was no response from OP No.2. The complainant tried to reach the OP No.3 for his response to the email but he failed to give any satisfactory reply. The complainant alongwith her father went to the OP No.2 on 22.11.2022 and the representative of OP No.2 checked the phone and could not rectify the defect. Finding no alternative, she lodged a police complaint on 23.11.2020 with Police post, Sector-10, Panchkula. The police have registered the complaint as DDR No.12 dated 25.11.2020. The OP No.3 was called by the police and he admitted the fact of selling a defective phone but refused to refund the amount. Thus, the OPs have been indulging in unfair trade practices by selling a defective mobile phone. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.             Upon notice OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable. On merits, OP No.1 stated that the complainant  had approached  the OP No.2 on 26.10.2020 with regard to some alleged issues  pertaining to her iPhone 11 having serial no.F4GD91X9N736. The OP No.2 is the authorized service provider of OP No.1 inspected the said iPhone and informed the complainant that the said device would have to be sent to the Centralized Repair Centre(RC) of the OP No.1 for detailed inspection. The RC found the said iPhone to be having some issues and as the iPhone was under warranty, it was suggested that it be replaced. Accordingly, the OP No.2 replaced the complainant’s iPhone with a new replacement iPhone 11 bearing serial no. DNPD84JBN736 on 30.10.2020. After replacement of the display the iPhone was functioning well and the complainant has acknowledged the same while collecting it back from the OP No.2. Further, the OP No.1 is not aware of the interaction between the OP No.3 and the complainant. There is no privity of contract between the OP No.1 & OP No.3, which authorizes the OP No.3 to provide any sort of refund on the OP No.1 products. Secondly, as explained above the OP No.1 does not give any refund. The interaction as per the complaint filed by the complainant before the police, is between her and the OP No.3. Hence, OP No.1 is not liable for any such arrangements between the OP No.3 and the complainant. The OP No.3 is not an authority to decide if the said iPhone is defective. The complainant has not produced any sort of evidence by any expert/or any legal authority to certify the said device is defective.  So, there is no deficiency in service on the part of OP No.1 and prayed for dismissal of the present complaint.

                Upon notice OPs No.2 & 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action. On merits, OPs No.2 & 3 stated that when her iPhone stopped working after just 15 days of purchase and she brought it to the answering OPs on 26.10.2020, the defective device was replaced with a new device which was handed over to her on 30.10.2020. Also, the complainant took delivery of the new device, inspected it and then duly confirmed on the delivery report. It is also pertinent to mention here that the service record dated 26.10.2020 clearly shows in the column “Cosmetic Condition of Product” to have “scratch on side band and minor dent bear left bottom enclosure”. This indicates that after the complainant purchased her first device on 11.10.2020 and removed it from its sealed packaging, the complainant used the device negligently and roughly which resulted in the marks on the device and perhaps the device stopped recognizing the sim. Apple devices are declared to be used with care, which the complainant has ignored to do repeatedly. Further, the warranty support document of Apple Inc., does provide for replacement but nowhere does it provide for refund. Therefore, there is no way that any representative of the OP No.1 could have intimated to the complainant to obtain refund from answering OPs. In any case, the answering OPs functions under the instructions received from OP No.1 and the answering OPs have never received any instructions to provide any refund to the complainant from OP No.1. So, there is no deficiency in service on the part of OPs No.2 & 3 and prayed for dismissal of the present complaint.

3.             To prove her case, the ld. counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R-1/A along with documents Annexure R-1/1 to R-1/3 and closed the evidence. Ld. Counsel for the OPs No.2 & 3 has also tendered the affidavit Annexure R-2/A and closed the evidence.

                During the course of arguments, the complainant has submitted an affidavit, which is taken on record as Mark “A” for the proper adjudication of the case.

4.             We have heard the learned counsels for the parties and gone through the synopsis/written arguments filed by learned counsel for the complainant, carefully and minutely.

5.             Admittedly, the mobile set, namely, Apple iPhone 11 64GB white as purchased from OP No.2 vide invoice dated 11.10.2020 (Annexure C-1) amounting to Rs.66,500/- was replaced on account of certain defects in it by OP No.2 with new set bearing  Serial no.DNPD84JBN736 on 30.10.2020. The grievances of the complainant are that same defects also developed in the said replaced mobile set in its functioning and accordingly, OP No.3, who is the store Manager of the OP No.2 i.e. Authorised service centre of OP No.1, was contacted vide e-mail dated 24.11.2020(Annexure C-4) but neither the mobile set was repaired free of cost being within the warranty period nor its price was refunded to her. The complainant also filed an application dated 23.11.2020(Annexure C-5)before the Incharge Police Post, Sector-10, Panchkula alleging deficiencies and unfair trade practices on the part of OPs No.2 & 3 while selling defective mobile set to her.

6.             The OP No.1 contested the complaint on the ground that there is no refund policy of the OP No.1 as only replacement of defective mobile set is permissible during warranty period subject to terms and conditions. The ld. counsel for OP No.1 vehemently contended that the complainant never showed the replaced mobile set in question to any authorized service centre or the OP No.2 physically for its checking and inspection. It is contended that there is no defect in the replaced mobile set as the complainant has not produced any evidence like expert report etc. in support of the fact that mobile was defective.  

7.             The ld. counsel for OPs No.2 & 3 also made similar contentions that there was no defect in the replaced mobile set as the complainant as per delivery report(Annexure C-3) was fully satisfied with its working. It is contended that as per terms and conditions of the warranty, there is no provision of refund of the price of the mobile set. The ld. counsel prayed that the complaint is liable to be dismissed in the absence of any expert report substantiating and corroborating the contentions of the complainant with regard to the defects in the mobile set in question.

8.             The aforementioned contentions of OP No.1 that the complainant did not produce the mobile set in question before any authorized service centre or OP No.2 is not tenable in the light of clear averments made by the OP No.2 in its Para No.6 of reply on merits to the effect that the complainant was duly informed that the defect could be rectified only against payment of charges. The relevant part of Para No.6 of reply on merits, for the sake of convenience and clarity, is reproduced as under:-

                “In fact, the complainant was duly informed that the defect could be  rectified only against payment of charges”.

9.                 Further, the contention of OP no.1 that it has no relation with OP No.3 is of no avail to it as the OP No.3 is, admittedly, the store manager of OP No.2, which is an authorized service centre of OP No.1. The complaint lodged with OP No.3 as well as the Incharge Police Post, Sector-10, Panchkula regarding the defect in the mobile set are available on record as Annexure C-4 & C-5. A perusal of the e-mail (Annexure C-4) sent by the complainant to OP No.3 clearly reveals that  the complainant had raised the issue of defects in the replaced mobile set on 22.09.2020 with customer care no.8287482874 of OP No.2 as well as no.0008001009009 of technical team of OP No.1 and the call lasted for one hour 10 minutes 5 seconds. Further, a perusal of complaint lodged with the police (Annexure C-5) reveals that the mobile set was checked by Sh.Sunil, Service Engineer on 26.10.2020 and thus, it is not justified on the part of OP No.1 that mobile set was not produced by the complainant either before any authorized service centre or OP No.2. The aforementioned facts leads us to the irresistible conclusion that the OPs have failed to rectify the defects of the replaced mobile set and thus, there has been lapse and deficiencies on the part of the Ops; hence the complainant is entitled to the relief.

10.            Now, adverting to the relief, it is found that the complainant has claimed the refund of sum of Rs.66,500/- i.e. the price of the mobile set alongwith interest. The complainant has filed an affidavit, which is taken on record as Mark “A”, wherein it is stated that she had purchased a new phone in the month of December 2020 for a sum of Rs.85,000/- from USA. Photocopy of the particulars of the purchase set is enclosed with the Affidavit Mark “A”. We agree with the contentions of the complainant that mobile set, now-a-days, has become necessity to carry out the daily routine work and thus, it is concluded that the complainant has procured the new mobile set out of necessity. Therefore, the OPs No.1 & 2 are liable to refund the amount of Rs.66,500/- i.e. price of the mobile set in question to the complainant.

11.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.1 is directed to pay a sum of Rs.66,500/- i.e. price of the mobile set  as per Tax Inovice(Annexure C-1)  along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization subject to return/submission of replaced mobile set to OPs No.2 by the complainant.

2. The OP No.2 is directed to pay a sum of Rs. 10,000/- to the complainant on account of mental agony and physical harassment suffered by him.

3. The OP No.2 is also directed to pay a sum of Rs.5,500/- to the complainant on account of litigation charges.

12. The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:03.03.2022

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini           Satpal       

            Member                        Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                 Satpal                                        

President