Jammu and Kashmir

Jammu

CC/142/2018

RAJAT GUPTA - Complainant(s)

Versus

APPLE INDIA - Opp.Party(s)

AMIR AWAN

01 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

           (Constituted under J&K Consumer Protection Act,1987).

                                                          .

 Case File  No.                  484/DFJ           

 Date of  Institution   :   13-03-2018

 Date of Decision      :     29-08-2018

 

RaJat Gupta,

S/O Dr.Yudh Vir Gupta,

R/O 51/9 Trikuta Nagar,

Jammu.

                                                                                                                                                Complainant

                     V/S

1.Apple India Private Limited,

  19^th Floor Concorde Tower-C,

  UB City,No.24 Vitta Mallya Road,

  Banglore-560001.

2.F1 Info Solutions & Services Pvt.Ltd.

  Chahal Complex,168A,Sec.1,

  Railway Road,Gandhi Nagar,Extension,

  Nanak Nagar,Jammu-180004.

3.Tim Cook Chief Executive Officer(CEO)

   Apple Inc.C/O Apple India Private Limited,

  19^th Floor Concorde Tower-C,

  UB City,No.24 Vitta Mallya Road,

  Banglore-560001.

4.Michel Coulomb,Head of Operations,

     Apple India Private Limited,

  19^th Floor Concorde Tower-C,

  UB City,No.24 Vitta Mallya Road,

  Banglore-560001.

                                                                                                              Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                                Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

Mr.Mohd.Amir Awam, Advocate for complainant, present

Mr.Arvind Khajuria,Advocate for OP1,present.

   Nemo for OPs,2,3&4.

                                   

                                                    ORDER

 

                           The present complaint is filed by the complainant on the grounds that he purchased Apple made phone model iphone x 256 GB manufactured by OP1 for a consideration of Rs.1,02,500/-,on,10-11-2017 bearing IMEI No.356727082678879 vide Bill No.7477(copy of retail invoice is annexed as annexure-A with the complaint),however, immediately after the purchase of handset, it developed an inherent defect, whereby complainant was facing delay in receiving phone calls, whenever he received a phone call, the handset would ring and vibrate, but there is a delay of 7-8 seconds in displaying the name of the caller on the mobile phone. Complainant immediately approached OP2,who is the authorized service centre of OP1 who took the handset of complainant for removing the problem and made him to wait for hours together and thereafter returned the handset to him on the assurance that the problem has been removed and he will not face any problem in future. Allegation of complainant is that the said defect was never rectified at all and he started facing the same problem once again, thereafter he again visited OP2 and apprised him about the above mentioned problem faced by the complainant. Complainant further submitted that OP2 told him that there are customers across the world who are facing the same problem and there is no remedy available with them to rectify the defect. It is important to mention here that he is enclosing the reports of various websites wherein numerous customers have also complained of the same problem and OP1 has admitted that it is looking into the problem being faced by the customers of the Iphone X handset (copies of same are annexed as Annexure-B).Complainant further submitted that the defect mentioned above was never rectified and still exists and the Ops have not been able to remove the same. Further allegation of complainant is that he repeatedly approached OPs for rectification of defect, but the Ops failed to remove the defects, and same, according to complainant were manufacturing in nature, therefore, in the final analysis, for deficiency in service, complainant prays for refund of cost of handset to the tune of Rs.1,02,000/-alongwith interest @ 18% per annum and in addition, prays for compensation under different heads to the tune of Rs.8.50 lacs.

                             On the other hand OP1 in his objections has stated while taking the main objection that the said Iphone X bearing serial No.F2LVM5NVJCL6(IMEI No.356727082678879) was purchased from M/S Bhushas Radios,who is not the authorized dealer/reseller of OP1,on 10-11-2017 for Rs.1,02,000/-.The complainant approached OP2 an authorized service provider of OP1 on,16-02-2018 for some alleged issue regarding stuck on Apple logo issues in his iphone,accordingly,OP2 made a thorough technical analysis on it and since the device was under warranty,OP2 repaired the device under warranty and the issue with the device was resolved and the said device was returned back to the complainant in the working condition(copy of service report dated 16-02-2018 is annexed as Annexure-R2.That the complainant approached OP2 again on 22-02-2018 for the same issue to which OP2 diagnosed the device and the issue with the device was resolved and returned back the device to the complainant in working condition,(copy of service report dated 22-02-2018 is annexed as Annexure-R3).The complainant visited OP2 again for the issues regarding stuck on Apple logo, the Op2 diagnosed the device and minor scratches were found on the device, the VMI(Visual Manual Inspection )test was performed and the device had passed the test. The OP2 repaired the device and the issue with the device was resolved(copy of service report and delivery report dated 27-02-2018 is annexed as Annexure-R4 and R5).Thereafter complainant never visited/approached OP2 any time for any sort of service in the device. It is pertinent to mention here that the complainant has not produced any evidence in support of his claim and the complainant is solely liable for his own act of negligently handling the device and not due to the manufacturing defect. The complainant has not produced any expert opinion to prove that the device had manufacturing defect in it, hence OP1 is not liable for any refund/replacement and compensation. Further stand of OP1 is that complainant has not produced any evidence/service report to show that he had approached OP2 an authorized service provider of OP1 after 27-02-2018.That the OP1 had given service to the complainant whenever complainant had visited OP2 an authorized service provider of OP1 and so there is no deficiency in service on the part of OP1.Lastly it is prayed that the complaint may be dismissed.

                   Notices were sent to the OPs 2,3&4 alongwith copies of complaint through registered covers with acknowledgment due and as per record the notices were received by the Ops,2,3&4 but they did not choose to represent their case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so the right of OPs 2,3&4 to file written version was closed vide order dated 18-05-2018 and the complainant was ordered to produce evidence by way of affidavits in support of the complaint.

 

                    The complainant adduced evidence by way of duly sworn his own affidavit and affidavits of Tarun Mahajan and Varut Kumar Gupta,respectivley.The complainant has placed on record copy of tax  invoice issued by M/S Bhushan Radios,copies of reports of various websites, copy of job sheet,copy of job sheet and service delivery challan and copy of job sheet and service delivery challan.

                     On the other hand,OP1 adduced evidence by way of duly sworn affidavit of Priyesh Poovanna Country Legal Counsel Apple India Ltd.OP1 has placed on record copy of warranty terms, copy of service report dated 16-02-2018,copy of service report dated 22-02-2018 and copy of job sheet dated 27-02-2018.

                 We have perused case file and heard L/Cs for the parties at length.

                   To be brief, grievance of complainant is that he purchased Mobile phone Apple made Model Iphone X 256 GB,on,10-11-2017,against sale consideration of Rs.1,02,000/-but ,within warranty period, same was marred by defects. Further allegation of complainant is that despite he approached OP2(i.e.authorised service centre)but OP2 failed to rectify the defects, which were manufacturing defects in nature.

                    On the other hand, OP1,while denying the allegations of complainant in toto,went onto submit that the complainant has not produced any expert opinion to prove that the device had manufacturing defect in it, hence OP1 is not liable for any refund/replacement and compensation. Further stand of OP1 is that complainant has not produced any evidence/service report to show that he had approached OP2 an authorized service provider of OP1 after 27-02-2018.That the OP1 had given service to the complainant whenever complainant had visited OP2 an authorized service provider of OP1 and so there is no deficiency in service on the part of OP1.

                      After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not Ops are deficient in service in not redressing the grievance of complainant.

                      Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

           After considering the pleadings and evidence of the parties, the main thrust of the OP1 is that no expert evidence was produced or any opinion was obtained from the expert, but in our opinion no expert evidence was necessary to establish that there was some manufacturing defect in the handset, which were beyond rectification as evidenced by the repeated failure of OPs to control in receiving the phone calls, because whenever complainant received a phone call, the handset would ring and vibrate, but there is a delay of 7-8 seconds in displaying the name of the caller on the handset. The problems mentioned in the complaint was not borne out on the job cards annexed with the file. It is also evident from the job cards annexed with the complaint that complainant visited authorized service centre of Ops number of times within four months from the date of purchase of handset and the handset in question did not function smoothly after its purchase and it had to be taken to the service centre of OPs with the same problem. It is also evident from the evidence of complainant that the handset is still lying at the residence of complainant because it could not be at all used.

        Before proceeding further, it is important to reproduce Section 11(1)of J&K Consumer Protection Act:

              Where the complaint alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods, the District Forumshall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with  a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the {District Forum}within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum

                   From this, it is clear that reference to an appropriate laboratory(or, expert)for determination of defects in goods is not entirely mandatory. In this case, based on the admitted evidence that the complainant was required to take his newly purchased handset to the authorized service centre of OPs repeatedly particular four times in a month.

             L/C for OP1 submitted that there is no expert opinion that there is a manufacturing defect in the handset. In our view no expert opinion is required in the circumstances of the case as noted above. The handset in question did not function smoothly to the satisfaction of complainant after a short span of its purchase, it was taken to the workshop of OPs with the complaint of delay in displaying the name of the caller, hanging problem and then got stuck at apple logo. The handset had to be taken to the service centre of OPs number of times with one problem or the others which continued persisting impels us to the interference that there is some manufacturing defect which is beyond rectification.

            The case law cited by L/C for OP1 has no relevance in the case in hand as the facts and circumstances of the instant case is different.

                 From perusal of averments contained in the complaint, it is manifestly clear that within a short span of its purchase, the handset started giving trouble,whereas,despite repeated visits  to Ops authroised service centre, the handset could not be made  workable,therefore,in our opinion once high-end hand set purchased by complainant,obviously,without any rhyme or reason, question of grouse, regarding fault of handset would not have arisen, instead of making use of it. Rather we think Ops should have redressed grievance of complainant, who spent such huge money and banked upon such multinational brand, but it seems that instead of well coming the consumer,Ops have chosen to multiply  suffering, which of course is unwarranted and unexpected from such brand. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by Ops.

                     After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumers as per the purport of Section 2(d) of Consumer Protection Act and OP is the service provider having failed in its statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumers. The consumers have to come forth and seek for redressal of their grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                              Accordingly, the best and befitting course which the Forum feels as adequate step to redress the grievance of complainant to give a direction to  OPs  to replace the handset with a new one of the same model and the complainant shall return the mobile phone,alongwith accessories to the opposite parties.                      However, in the facts and circumstances of the matter parties are left to bear their own costs. Copy of this order be provided to both the parties as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                            (Khalil Choudhary)                               

Announced                                                           (Distt.& Sessions Judge)

29-08-2018                                                                    President

                                                                              District Consumer Forum

                                                                                      Jammu.

Agreed by                                                          

                                                                                      

Ms.Vijay Angral          

  Member                                                                                              

 

Mr.Ghulam Sarwar Chauhan

Member