Brief facts as narrated in the complaint are that complainant purchased a mobile set (i Phone, 648 silver) bearing No. 20359405 0885000192 from OP-4 Axiom Telecom Maximum Communication, dealer of OP-1 for 3,962/- Dirham equivalent to Indian Rs. 69,997/- on 26.12.2017 against Invoice No. 0478 and its was assured that subject i Phone carry a warranty of one year from the date of purchase. That the subject mobile set started trouble and ultimately stopped working. She approached the OP-3 Machintel Solutions, authorized Service Centre of OPs 1 and 2 through her cousin Ms. Subrata Dutta for repair the set. OP-3 received the set under service Voucher No. 48421 dated 22.12.2018. Vide email dated 08.01.2019 the OP-3 informed Ms. Subrate Dutta that i Phone was sent to Apple Repair Centre for screening and repairing process. OP-3 further informed that device of i phone is un-repairable and it is not covered under warranty. The matter was noticed to the OP-2 Apple India Pvt. Ltd. who showed its inability to do anything in this regard. On failure to get the defect rectify within the warranty period or replacement of defective set, alleging deficiency in service on the part of the OPs the instant complaint is filed by seeking the directions; either to repair the defective i phone or replace the mobile set, to pay Rs. 15,000/- as compensation towards mental agony and harassment and to pay Rs. 5,000/- as litigation expenses.

            The OP-2 has filed its WV through  its authorized representative  wherein they have denying the contents of the complaint and contending that the complaint is mala-fide and without any merits and contradicts established principles of law. The subject i phone was purchased in Dubai from OP-4 and it is manufactured with cutting edge technology and utmost customer satisfaction. If a consumer cause damage the product by external factors which is not associated with the manufacturing/inherent condition of the product, such acts are in complete disregard and in breach of the warranty policy of the manufacturers and in these circumstances the consumer cannot claim any relief under the Consumer Protection Act. The answering OP further alleges that the service report of OP-3 upon deposit of subject i phone, specially mentions that there is visible damage in the i phone due to the fault of the complainant. OP-3 being the authorized service provider of the answering OP made a thorough technical analysis on the i phone and found that there were spots and scratches on the body of the subject i phone, dents on the enclosure, scratch on the rear camera bracket, black spot into the lighting port and the i phone was received by the OP-3 in “Not Powering On” condition. The subject phone was not repairable because, they found an “Inspection Failure” as a result, for which the i Phone could not be covered under Apple Warranty. The outcome of inspection was communicated vide e-mail dated 26.12.2018. Complainant is well aware that the damage of i phone occurred due to own fault of her  and the answering OP is not liable to provide replacement of i phone. The complainant is not entitled to free of cost repair under the terms of warranty. Accordingly, the answering OP has prayed for dismissal of the complaint with exemplary costs.

            The complaint is resisted by OP-3 Macintel Solutions by filing WV. OP-3 pleads that neither they are manufacturer nor seller or supplier of the subject i phone. To prove the allegation of the manufacturing defect in the i Phone, an expert opinion is absolutely necessary but the complainant has not relied upon any expert opinion so as to substantiate her allegation of manufacturing defect. The complainant had no privity of contract with the answering OP. Thus, no liability is casted upon the OP-3. It is further averred that as per Apple Guidelines on receiving the handset from the complainant/customer the handset was sent to Apple Repair Centre, Bangalore who are unable to repair the said handset/i phone as the said I Phone had extensive physical damage. In the complaint petition there is no direct allegation of deficiency of service and unfair trade practice against the answering OP and as such, this complaint is devoid of any merit.

            Remaining OPs did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex-parte against them.

We have heard the Ld. Counsel for the parties and perused the material available on record and evidence adduced by the parties.

It is not in dispute that the complainant purchased a i Phone being 648b Silver bearing No. 203594050885000192 from OP 4 Axiom Telecome Maximum Communication at a cost of 3962/- Dirham equivalent to Indian Rs.  69,997/- against Invoice No. 0478 dated 16.12.2017 with a worldwide warranty of one year. The facts not in dispute that the subject i Phone started trouble and the complainant through her cousin approached the OP 3 Macintel Solutions, authorized service centre of OPs 1 & 2 to repair it under service voucher No. 48427 dated 22.12.2018.

The subject i Phone was sent to Apple Repair Centre, for screening and repair process who in turn found visible damage in the i phone due to fault of the complainant. According to Learned Counsel of the OP 2 Apple India Private Limited, the complainant is not entitled to a free of cost repair under the terms of warranty on the allegation of manufacturing defect. The contention of the OP 2 that OP 3 Macintel Solutions found spots, scratches on the body of the i Phone, dents on the enclosure, scratch on the rear camera bracket, black spot into the lighting port and i Phone was received in “Not Powering On” condition and it is recorded in the service report dated 22.12.2018. It is further contended that the OP 2 vide e-mail informed the complainant that the i Phone is not covered under the Apple warranty on account of extensive physical damage caused due to negligence of the complainant. The complainant has also concealed the material facts and has approached the Hon’ble Commission with unclean hands.

Per-contra, learned Counsel for the complainant contended that the i Phone was sent for repairing within the warranty period but the OP 2 claim a huge amount to make it functional condition and such act on the part of the OPs tantamount to deficiency in service and/or an act of unfair trade practice. He further argued that OP/Apple service tried to avoid its liability and the i Phone is very sophisticated and cannot be repaired by other service centre. Thus, the OPs are jointly and severally liable to repair it or alternatively replace the i Phone.

In fact, the OP 2 in their WV admitted that complainant deposited the i Phone and the OP 3 being a service centre submitted their report dated 22.12.2018 wherein it has been mentioned that there is visible damage in the i Phone and such damage caused due to own fault of the complainant. The said report is on record but the OP 3 Service Centre failed to file any evidence to prove the report dated 22.12.2018, without any specific evidence on this point. OPs 1 & 2 cannot take any plea that visible damages caused due to own fault of the complainant. Moreover, i Phone was handed over to the OP 3/Service Centre within the warranty period. In view of judgment of the Hon’ble SCDRC, Punjab decided on 11.07.2017 (Apple India Pvt. Ltd –Vs- Tarun Kumar) the OPs 1 & 2 are required to repair or replace the defective parts. OP 3 is neither the manufacturer nor seller or supplier of the subject i Phone. OP 3 is a Service Centre who merely addresses the issues arising out of the defects in the Apple Mobile sets. OP 4 is the seller of subject i Phone. OPs 3 & 4 have no liability as there is no previty of contract between the complainant and the OPs 3 & 4. Thus, the complainant is not entitled to get any relief or reliefs against the OPs 3 & 4.

In the given facts and circumstances and keeping into consideration the principles as laid down by the Hon’ble SCDRC, Punjab in First Appeal No. 954 of 2016, we are of the considered view that there is material on record to prove the liability of the OPs 1 & 2 and there exists deficiency of service on their part.

In the result the complaint is allowed on contest against OP 2 and ex-parte against OP 1. The OPs 1 & 2 are directed to repair subject i Phone being 648b Silver having No. 203594050885000192 in its functional condition, alternatively replace a new i Phone of same model and type along with compensation of Rs. 10,000/- towards mental agony and a sum of Rs. 5,000/- towards litigation cost. Time for compliance two months, from the date of the order, failing which the complainant may put the final order in execution  as per CP Act, 2019.

The consumer case is dismissed against OPs 3 & 4 without any cost.

           Copy of the judgment be supplied to the parties free of cost as per CP Act. Judgment be uploaded to the website of the commission for perusal of the partaies.