Kerala

Idukki

CC/140/2019

Abihilash R - Complainant(s)

Versus

Apple India Pvt Ltd - Opp.Party(s)

11 Oct 2022

ORDER

DATE OF FILING :  25.7.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  11^th  day of  October, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.140/2019

Between

Complainant                                          :   Abhilash R.,

                                                                  Kalleveetil House,

                                                                  Chattupara, Adimali P.O.,

                                                                   Idukki – 685 561.    

       (By Adv: Lissy M.M.)

And

Opposite Parties                                     : 1.   Apple India Pvt. Ltd.,

                                                                       19^th Floor, Concode Tower,

                                                                       C UB Cuty No.24,

                                                                      Vittol Mallya Road,

                                                                       Bangalore – 560 001.

                                                                       Represented by its Managing Director.

           (By Advs:  Sharan Shahier, Nandakumar,

                    Anusha Murti,Esha Suchak,

Tom Thomas &Jibin Antony)

      2. S. Squad Technologies,

                                                                      Oxygen Tech Tower,

                                                                      Kallarkuty Road, Adimali – 685 561.

Represented by its Managing Partner.

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

         

This is a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).

 

          Complainant had purchased a brand new Apple iPhone with storage capacity of 128 GB having IMEI No.357364098423634, on 14.3.2019, from 2^nd opposite party,                                                                                                           (cont….2)

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which was manufactured by 1^st opposite party.  Complainant had paid Rs.75,000/- to 2^nd opposite party as price of the phone.  He had availed a loan from Bajaj Finance for the said purchase.  2^nd opposite party had assured one year warranty for the phone and it was given one year comprehensive guaranty. Opposite parties have, through their advertisement, made online and also in brochures, claimed that phone was resistant to dust and water and that it could resist water to a maximum depth of 1 metre for 30 minutes.  Believing this, complainant had purchased the phone,  so that he can use it without fear of phone getting damaged due to exposure to water or dust even while riding a motorcycle.  About 1 month prior to the filing of complaint, phone got damaged, due to splashing of water from table top of complainant.  As instructed by 2^nd opposite party, phone was entrusted for necessary repairs with the authorized service centre of 1^st opposite party, namely, I care at Kottayam.  To the surprise of complainant, authorized service centre had requested complainant to pay Rs.39,000/- for removing water and for replacement of entire unit as such.  Complainant submits that due to misleading advertisement given, complainant was cheated into purchasing iPhone believing that it was water resistant.  This amounts to unfair trade practice on the part of opposite parties. 

 

          Upon enquiry, complainant had come to know that 2^nd opposite party used to purchase damaged and refurbished products from certain online trading sites which used to purchase those from 1^st opposite party.  Refurbished phone are 2^nd grade products.  A similar refurbished phone was sold to complainant at a  high price upon representations that it was a new one.  Authorized service centre had advised complainant that unless the entire unit is replaced, water present inside the phone will damage it.  Complainant, upon these premises, submits that opposite parties are guilty of having resorted to unfair trade practice. Hence they should  be directed to replace the phone with a new one of same model or in the alternate to refund the price of phone to complainant.  He also prays for an award of Rs.50,000/- as compensation and Rs.5,000/- as litigation costs.

 

          Complaint was admitted and notice was issued to opposite parties. 1^st opposite party has entered appearance and filed written version.  Registered notice sent twice to the known address of 2^nd opposite party were returned unserved with an endorsement that addressee is not known.  It is seen that both notices were issued to the address of 2^nd opposite party as shown in the invoice issued by it for the phone.  Therefore, by invoking presumption that notice was deemed to be served, 2^nd opposite party was set exparte. Contentions advanced by 1^st opposite party in its written version, are in brief as here under :

 

          According to 1^st opposite party, complaint is to be rejected at the 1^st instance itself. That the complainant had purchased an iPhone of model XR 128 GB Red, on                                                                                                           (cont…..3)

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14.3.2019, with IMEI No.357364098423634, from 2^nd opposite party.  He had approached Apple Authorised Service Provider (AASP), reporting liquid damage to the phone.  AASP, upon confirmation of liquid damage, intimated complainant that iPhone is not eligible for any warranty repair.  It had offered to repair the phone upon payment of service charges.  However, this offer was not acceptable to complainant.  Opposite party No.1 further submits that the entire publication relating to the product was not mentioned by complainant.  The publication made specifies that splash water and dust resistance are not permanent conditions and resistance might decrease as a result of normal wear.  That iPhone should not be charged when it was wet and user guide should be referred for cleaning and drying instructions.  It is also specifies that liquid damage is not covered under warranty.  Website of opposite party No.1 has clearly specified the conditions of warranty as narrated above.  Complainant cannot accept portion of advertisement and deny remaining terms and conditions which are specified therein for the purchase of iPhone.  Besides, he himself admits that liquid damage occurred due to his negligence.  Negligence of complainant in using the phone which is in complete disregard of warranty policies, constitutes breach of warranty and therefore he cannot claim protection under the Act.  It is incorrect to say that there was misleading advertisement containing false claims by opposite parties owing to which complainant was misled and further that this amounts to unfair trade practice by opposite parties.  Complainant is bound by the terms of policy relating to warranty.  When terms of warranty clearly bars a consumer from obtaining free benefits  in warranty repair owing to liquid damage, complainant cannot claim the same as free of cost.  At any event, authorized service centre had offered to repair the phone upon payment of requisite charges as the product was not covered by warranty for the specified damage complained of. 1^st opposite party cannot be blamed for deficiency in service or unfair trade practice.  Complaint is frivolous and vexatious.  It is to be dismissed with compensatory costs under the Act.

 

          After filing of written version, case was posted for evidence before which sufficient opportunity was afforded to both sides for taking steps.  Complainant was examined as PW1,  Exts.P1 and P2 were marked on his side.  No evidence was tendered by 1^st opposite party after repeated opportunities were availed by, on its behalf, for the said purpose.  Hence evidence was closed.  Counsel for complainant addressed oral arguments.  Argument notes were filed on behalf of 1^st opposite party by its counsel.  Now the Points which arise for consideration are :

 

1. Whether 1^st opposite party had made any false representations that the phone manufactured by it is water resistant to maximum a depth of 1 metre for 30 minutes ?

2.  Whether 2^nd opposite party had sold a 2^nd hand reconditioned phone to complainant representing that it was a new one ?                                                                (cont….4)

 

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3.Whether opposite parties have resorted to unfair trade practice as against complainant?

4.  Reliefs and costs ?

 

Point Nos.1 to 3 are considered together :

 

          Learned counsel appearing for complainant submitted that there was a false representation to the effect that phone was water resistant to a depth of 1 metre for a period of 30 minutes.  Soon after its purchase, water had fallen upon the phone, when  a glass of water had toppled on the table top of complainant, accidently.  Thus, water had gone inside the phone, contrary to the assurance given in Ext.P2 that the phone was water resistance for a depth of 1 metre upto 30 minutes.  Learned counsel has submitted a copy of notification issued by Central Consumer Protection Authority dated 9.6.2022, which contain guidelines for prevention of false / misleading advertisements.  The notification details the conditions for non-misleading and valid advertisements, those relating to bait advertisements, prohibition of surrogate advertisements and the like.  Learned counsel  submitted that online advertisements made, copy of which is admitted as Ext.P2, would clearlyfall within the mischief of notification.  Inter alia, learned counsel also contended that a refurbished product was passed as of a new one, by 2^nd opposite party.  This would also amount to unfair trade practice.  Able counsel on these premises sought for replacement of damages phone with an unused new one.  Or in the alternate for return of price amount paid by complainant.  He also prays for award of compensation and litigation costs as prayed for.

 

          2^nd opposite party is exparte.  1^st opposite party has filed written notes, copy of which was given to complainant.  Contentions addressed in the notes are in brief as here under :

 

          Notes contain contentions advanced by opposite party in written version.  In the first 10 paragraphs, there are repeated statements to the effect that benefits of free in warranty repairs is not available for liquid damage and further that paid service was offered for which the complainant was not amenable.  Definition of the term deficiency in service as contained in the New Act have been reproduced in the notes.  Notes further  proceedupon a mistaken footing that there are allegations  that 1^st opposite party had sold a refurbished phone to complainant, whereas those allegations are specifically made only against 2^nd opposite party.  It is contended that there is no evidence to show that the product was a refurbished one.  Following decisions were mentioned in the notes  :

1.  Decision of Supreme Court of India dated 2.11.1999 in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and another, Appeal (Civil) No.8701 of 1997.

2.  Decision of National Consumer Disputes Redressal Commission dated 6.8.2012 in Kumari Namrata Singh Vs. Manager, Indus – A Division of Electrotherm, Revision Petition No.2670 of 2010.                                                                      (cont…..5)

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3.Decision of National Consumer Disputes Redressal Commission in Classic Automobiles (Appellants) Vs. Lila Nand Mishra and others (Respondent), Revision Petition Nos.374-375 of 2005, decided on 4.8.2009, reported in 2010 (1) CPJ 235 (NC).

4. Decision of National Consumer Disputes Redressal Commission in Sushila Automobiles Pvt. Ltd. (Appellants) Vs. Birendra Narain Prasad and others (Respondent), decided on 7.5.2010 reported in 2010 (3) CPJ 130 (NC)

5. Decision of State Consumer Disputes Redressal Commission, Uttarakhand in Manager, M/s. Ashutosh Goyal (Appellant) Vs. Sh. Ashok Bhatt (Respondent), dated 1.5.2019 (First Appeal No.104/2011).

6.  Decision of National Consumer Disputes Redressal Commission in Tata Motors Ltd. (Appellants) Vs. Deepak Goyal and others (Respondent), Revision Petition No.2309 of 2008, decided on 30.1.2015 reported in 2015 (1) CPJ 607 (NC).

 

Contentions are to the effect that,complainant cannot succeed in an action for supply of defective goods  without proving that  goods are defective, for which expert opinion regarding goods alleged to be defective should be necessarily obtained and that decisions mentioned supra are authority to this effect.

 

          Thus, these are rival contentions.  We have gone through the complaint, written version and documents submitted in this case.  In so far as complaint is concerned, it contains initially allegations to the effect that a new phone was purchased and this new instrument was not up to the quality or standard as mentioned in representations made by the manufacturer online and also in written representations.  However, in paragraph 6 of the complaint, the allegations take a dramatic twist.  Complainant would submit that upon enquiry, he had come to know that 2^nd opposite party had passed off an old refurbished phone representing that it was a new one to him.  He would explain that there is sale of old refurbished and damaged iPhones by 1^st opposite party to several online sites. The phone in question was one such, obtained by 2^nd opposite party from those sites and  sold to complainant as a new one.  Allegations in complaint and contentions addressed in argument notes would make it clear that complainant has not raised any allegations as against 1^st opposite party of having sold an old refurbished phone in  conjunction with 2^nd opposite party.  In short, there is no privity of contract with regard to sale of phone between complainant and 1^st opposite party.  As far as 1^st opposite party is concerned, he is impleaded in his capacity as manufacturer of the product, which is falsely represented to be of quality  which it actually does not possess.  In short, allegations initially are to the effect that 1^st opposite party had falsely represented that goods are of a particular standard or quality, where in fact they are not, which brings these actions within the definition of the term  unfair trade practice under Section 2(1)(r)(i) of the Act.

                                                                                                                (cont….6)

 

• 6  -

 In this context, it would be apposite to refer to Ext.P2.  The so called representation is contained in the 1^st page itself shown as Sl. No.2.Though the phone is described as splash, water, dust resistant and tested under controlled laboratory conditions with rating of IP67 under IEC standard 60529 (maximum depth of one metre up to 30 minutes, it is specifically stated that splash, water and dust resistance are not permanent conditions and resistance might decrease as a result of normal wear.  There is also a warning to the effect that the phone should not be attempted to be charged when it is wet and further that user guide is to be referred for cleaning and drying instructions.  It is also stated that liquid damage is not covered under warranty.  We have gone through the remaining pages also.  In the 2^nd page, there is only a declaration to the effect that iPhone XR resists water and dust.  Its durable front glass which is sealed and precision fitted with aerospace grade aluminum band, helps to create an enclosure that makes it water resistant up to one metre for 30 minutes.  That the phone resists spills from coffee, tea, soda and more.  It is also mentioned in  other pages that the phone is water and splash resistance.  However, as mentioned earlier in the 1^st page itself, details regarding claim of water and dust resistance are clearly stated.  It is also stated that liquid damage is not covered by warranty.  Facts being so, it cannot be said that there was a totally false or misleading advertisement to the effect that the phone will be water resistant to the mentioned depth and time in all circumstances. 

 

However, we notice that as per Ext.P1, phone was purchased on 14.3.2019.  It is mentioned in the complaint that spills and resultant damage to the phone took place one month prior to the filing of the complaint.  Complaint is seen dated 19.7.2019.  That being so, damage was caused purportedly on 18^th or 19^th of June 2019, which is within 3 months of purchase. Ordinarily, considering the period of usage, there is no room for any normal wear and tear which may affect water resistance. So also, contentions that warranty does not cover negligence on the part of customer are without any merits.  Complainant has only stated that there was accidental spillage of water from a glass which had toppled on the top of a table where the phone was also kept.  Ordinarily no,sane  person will deliberately damage costly gadgets like an iPhone or other electronic equipments by  pouring of water on over them.  Such damages are caused accidently.  That is why consumers prefer phones or gadgets  which are resistant to the elements mentioned above.  Therefore, contentions addressed in the written version and evidence that  negligent acts of the consumer had resulted in spillage and therefore, warranty is not attracted cannot be accepted.   However, there is specific mention of the fact that liquid damage is not covered by warranty as could be seen from Ext.P2 itself.  That being so, assuming that sale was of a new phone, opposite party No.1 cannot be held liable under the warranty. 

 

                                                                                                                        (cont….7)

 

• 7  -

Next is the question regarding the phone falling short of being water resistant.It is pertinent to note that the damaged phone which according to complainant has other minor   defects also  was not produced before this Court.  No steps were taken for examination of the phone in any laboratory or by any expert for getting an expert opinion with regard to the quality of iPhone and nature of damage caused to it.  So also, the phone could not be effectively tested to see whether the claim of it being water resistant as mentioned in Ext.P2 was correct or not.

 

          Apart from all these, specific case projected in paragraph 6 of the complaint, that an old refurbished phone was passed off to complainant by 2^nd opposite party as a new one would absolve the 1^st opposite party from any liability with regard to representations made regarding its quality, viz. water resistance and manufacturing defect as such.  If an old refurbished phone is in fact sold to the complainant by 2^nd opposite party, he alone can be made liable for unfair trade practice as defined under Section 2(1)(r)(1)(iii) of the Act.  It is pertinent to note that the complainant has no case that an old product was passed of as a new one by both opposite parties.  He has only stated that 1^st opposite party sells old damaged or 2^nd hand iPhone manufactured by it to various online traders from where such products are purchased by 2^nd opposite party.  There is no law prohibiting sale of old, refurbished or 2^nd hand products.  However, liability would arise only under the Act if the old refurbished or damaged products are passed off to the consumers as new ones.  Going by the complaint, this allegation is only against 2^nd opposite party alone. 

 

          Opposite party No.2 had not appeared.  He is exparte.  Allegations contained  in the complaint are not controverted by him.  Affidavit filed by complainant on the line of these allegations also stands unchallenged by  2^nd opposite party.  However, 1^st opposite party has taken a contention that these facts are to be proved by getting  expert opinion.  As mentioned earlier, the damaged or refurbished phone was not produced before this Commission,  along with the complaint or on the next available opportunity.  There was no attempt from the part of complainant too to get the phone examined by an expert to obtain opinion with regard to its lower water resistance or other defects as alleged in the complaint.  These acts of the complainant makes us reluctant to accept the testimony of PW1 regarding lack of quality or defects in the phone.

 

To put it shortly, if it is a case of 2^nd opposite party passing off an old refurbished phone as a new one to the complainant, 1^st opposite party cannot be multched with any liability with regard to warranty and representations made in connection with the goods manufactured by it.  An old or refurbished phone, apparently and evidently will not  be in the same condition as a new one and it may according to owners usage may suffer defects for which manufacturer cannot be made liable.                                    (cont…8)

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On the other hand, if a product were to be a new one, then certainly the manufacturer will have to answer the liability caused owing to any defect in quality or the phone or  instrument not performing to the required levels as represented by him.  In the instance case, we have observed that there was no representation that the phone would be  water resistant up to a depth of one metre for a period of 30 minutes under all conditions or circumstances.  It is also mentioned in Ext.P2 itself that warranty will not cover damages caused by liquid.

 

Two inconsistent contentions are advanced, which are mutually destructive. Initial stand is a new phone not being of the quality represented and subsequent case is of an old reconditioned product being passed on as a new one.

 

Apart from this, the phone itself was not produced and nor an expert opinion sought with regard to its quality or defects.  Under thesecircumstances,  allegations that the new phone purchased lacks the quality or did not meet the standards represented by the manufacturer and further allegations that an old phone was passed off to him as it were a new one by the dealer stand unproved.  We find that complainant has not succeeded in proving that 1^st opposite party had made false representation to the effect that phone is water resistant to a maximum depth of one metre for 30 minutes.  We also find that there is no evidence to prove that 2^nd opposite party had sold a 2^nd hand refurbished phone to the complainant representing that it was a new one.  There is no evidence to prove that any unfair trade practice was resorted to by the opposite parties.  Point Nos.1 to 3 are answered accordingly. 

 

Point NO.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs. Parties are at liberty to take back extra sets of copies produced upon expiry of appeal period.

 

                 Pronounced by this Commission on this the   11^th   day of October, 2022

 

                                                                                                    Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                                                                                Sd/-

          SMT. ASAMOL P., MEMBER

                              Sd/-

SRI. AMPADY K.S., MEMBER

 

                          (cont....9)

• 9  -

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -  Abhilash K.R.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -  tax invoice dated 14.3.2019.

Ext.P2    -   brochure of the product.

On the side of the Opposite Party :

Nil.

 

 

                                                                                        Forwarded by Order,

 

 

 

                                                                                   ASSISTANT REGISTRAR