….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. V. K. Gupta, Adv. Counsel for Complainant.
Sh. Aditya Jain, Adv. Counsel for OP No.1.
OPs No.2 & 3 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP No.1 is the manufacturer of mobile Phones under the brand Apple and the OP No.2 is the service center of the OP No.1 and the OP No.3 is the authorized dealer of the OP No.1 at Jalandhar. The complainant has purchased an Apple mobile IPHONE-12 (64 GB) bearing serial No.GV4GF50R0F0Q, IMEI No.356753562970776 from OP No.3 who has ensured complainant that the above said mobile is the best mobile in the market and insisted complainant to purchase the above said mobile and ensure best after sale service and one year guarantee on any fault and had ensured that the mobile set will be replaced immediately if any defect is founds in the working of the above said mobile with in a period of one year from the date of purchase. On the assurances and guarantees given by the OP No.3, complainant has purchased the above said mobile from OP No.3 vide cash memo no.T/21- 22/29523 dated 01-12-2021 for a sum of Rs.55,500/-. After the purchase of the above said mobile set complainant found that there is charging problem and mobile set was not started and this defect was brought to the notice of the OP No.3, and the OP No.3 referred complainant to the OP No.2. The said mobile set was delivered to the OP No.2 on 11.12.2021 by complainant with the request for replacement as per assurances given at the time of purchase as the same starts giving trouble due to manufacturing defect just within 10 to 15 days of its purchase. At this time OP No.2 has intimated complainant that there is manufacturing defect in the mobile and same is required to be sent to the OP No.1 and within 5 to 10 days a new mobile set will be delivered to the complainant. Accordingly mobile set was delivered to the OP No.2 and receipt dated 11.12.2021 was issued by OP No.2. Thereafter when on 20.12.2021 when complainant approached the OP No.2 to enquire about the phone then the OP No.2 intimated the complainant that they will not replace the phone and has offered the complainant to obtain repaired phone which the complainant has refused. Refusal by the OP to replace the phone with new one by OP No.2 was highly shocking for complainant and he felt cheated at the hands of OPs No.1 to 3, however as complainant insisted for replacement as agreed and threatened legal action against OPs No.1 to 3. Thereafter, OP No.2 after consulting with OPs No.1 to 3 has asked complainant to deliver the above said mobile and assured that the mobile will be replaced with 2 days after receiving the new set from company i.e. OP No.1. Thereafter, the complainant served a legal notice dated 23.12.2021 to the OP to replace the mobile phone immediately as assured to him at the time of sale of said mobile phone. On 30.12.2021 complainant has received telephone call from the OP, whereby its officials has given the offer to replace the phone and complainant. On insistence of complainant, OP has send email dated 30.12.2021 to the complainant stating that a new replacement device Iphone 12, HH2GQ00W0F0Q was issued to the complainant under the service ID no. G519441118 for resolving the complainant's issue and requested the complainant to approach the service center. Thereafter complainant again approached the OP No.2 to collect new replacement device but he was highly surprised and shocked when service center has provided him replacement mobile in open box, and when he enquired about the reason then he was intimated that device is repaired device and not a new one with different IMEI number. The complainant immediately refused to accept said device and has again the reverted to customer care and has requested them to provide him new device as promised to him on email. In response to said mail Mr. Kashif Jamil official of the opposite party vide email dated 31.12.2021 has intimated the complainant that he is investigating the matter. But thereafter no revert is received by complainant, however later on 04-01-2022 one email is received from opposite party to the effect that new service ID has been generated qua the complaint of the complainant. Emails exchanged between complainant and opposite party are placed on record. The OPs No.1 to 3 have sold the defective mobile set to complainant and despite the repeated requests, and visits of complainant opposite parties have failed to replace the mobile as promised at the time of sale. Due to the non-working of the mobile phone, the complainant suffered a lot, mentally, physically tension and has also suffered financial and conduct of OP amounts to deficiency in service and unfair trade practice. The complainant served legal notice dated 23.12.2021 upon the OPs, but all in vain 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 replace the mobile set of the complainant with the new one or to refund a sum of Rs.55,500/- to the complainant. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses.
2. Notice of the complaint was sent to the OPs, but despite service OPs No.2 & 3 failed to appear and ultimately, OPs No.2 & 3 were proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that at the very outset, it is stated that the contentions and averments made by the Complainant in the instant complaint are blatantly false, vexatious, devoid of any merits and made with the malafide intention of harassing the answering OP No.1. The Complainant with dishonest intention seeks undue benefits and unjust enrichment by making blatantly false and unsubstantiated claims against the OP1. It is further averred that the Complainant is guilty of materially concealing and suppressing material facts and has approached this District Commission with unclean hands with the sole intention of deceiving this District Commission. The instant Complaint is nothing but an absolute abuse of the due process of law. Thus, rendering the complaint, liable to be dismissed, in limine, for not having merits. It is further averred that the contentions, submissions and allegations in the complaint are incorrect, vexatious, misleading and denied except which specifically admitted hereinafter. It is further averred 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 Commission. On merits, it is admitted that the complainant had purchased an iPhone on 01.12.2021 from OP No.3 with one year warranty i.e. till 01.12.2022 and the complainant approached the OP No.2/Service Centre on 11.12.2021 for the phone issue, 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. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is admitted and proved that the complainant had purchased an iPhone for a sum of Rs.55,500/- on 01.12.2021 from OP No.3 with one year warranty i.e. till 01.12.2022 as per Ex.C-1. The complainant has alleged that after the purchase of the above said mobile, the complainant was having problem of charging and mobile set was not starting and this defect was brought to the notice of the OP No.3 and the OP No.3 asked the complainant to complained OP No.2. The complainant handed over the handset to the OP No.2 on 11.12.2021 with the request for replacement and the OP No.2 has intimated the complainant that there is manufacturing defect in the mobile phone and the same is required to be sent to the OP No.1 and within 5 to 10 days a new mobile set will be delivered to him. Copy of the service receipt is Ex.C-2. But when the complainant on 20.12.2021 approached the OP No.2 to enquire about the phone, then the OP No.2 intimated him that the phone repair will be done to which the complainant did not agree. The complainant has proved by way of affidavit that on 30.12.2021 when the new phone was to be given, he came to know that the phone was not new rather the same was repaired one with different IMEI . He did not take the phone. Ex.OP1/2 shows that the iPhone was replaced, but admittedly the iPhone is still with the OPs. The complainant returned the iPhone to the OP.
7. From the above documents and pleadings, it is clear that the iPhone was having some problem and this fact has been admitted by the OP No.1 also and the said problem came after 10 days of its purchase for Rs.55,500/-. The defect pointed out was manufacturing defect as the issue was of charging and the iPhone was under warranty at the relevant time. The OPs refused to replace the same. On the other hand, the OPs No.2 and 3 have not come to contest the case. So, the version of the complainant remained un-rebutted and un- challenged, even then the same is required to glance very deeply. So, from all the angles, it is proved that giving defective piece of product after charging heavy amount from the consumer is clear cut deficiency in service. Again instead of replacing the device, handing over the same device after changing the IMEI number and after repairing the same is unfair trade practice on the part of OPs and thus, the complainant is entitled for relief.
8. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP No.1 is directed to replace the handset of the complainant with new one of same model and same price, within 45 days from the date of receipt of the copy of order, failing which the OP will liable to refund the price of the mobile with interest @ 6% per annum from the date of purchase, till its realization. If the complainant wants to purchase mobile of new model, then he will have to bear the cost of difference of mobile of new model. Further, OPs are jointly and severally directed to pay a compensation of Rs.5000/- to the complainant for causing mental tension and harassment 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.
9. 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
29.04.2024 Member Member President
