Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 31.
Instituted on : 22.01.2015.
Decided on : 12.04.2016.
Rishikul College, Rohtak through its Principal Jitender son of Dayanand r/o Prem Nagar, Rohtak.
………..Complainant.
Vs.
- Chhabra Communication, SCF No.179, near ZAD Computer opposite BSNL Building, HUDA Complex, Rohtak through its Proprietor.
- Manager, computer support, Apple India Pvt. Ltd. 19th Floor, Concorde Tower, UB City No. 24, Vittal Mallya Road Banglore-560001(Karnataka).
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. B.S.Saroha, Advocate for the complainant.
Opposite party no.1 already exparte.
Sh.Kunal Juneja Advocate for opposite party No.2.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a mobile iPhone from the opposite party no.1 for a sum of Rs.71500/- vide bill no.44 dated 13.11.2013 and provided warranty/guarantee for the same. It is averred that opposite party no.2 is manufacturer of the said mobile and opposite party no.1 is retailer of same. It is averred that under the warranty period soon after the purchase of said mobile phone, same has become defective and it was having problem of hanging etc. Complainant contacted the opposite party no.1 regarding the defect and requested to replace the same or to refund the amount but the opposite party no.1 misbehaved with the complainant and said that nothing can be done. It is averred that act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to replace the set with new one or to pay the cost of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. On notice opposite party no.2 appeared and filed its reply submitting therein that the complainant had purchased the iPhone in the name of Rishikul college. Since the complainant is using the iPhone for commercial use, this Hon’ble Forum has no jurisdiction in the matter. It is averred that there is no deficiency in service on the part of opposite party No.2. It is averred that opposite party no.1 is not an authorized reseller and therefore does not have any contract or affiliation with answering opposite party. As answering opposite party is not privy to the transaction that took place between complainant and opposite party no.1, it would be a travesty of justice if opposite party no.2 is unnecessarily made to incur legal costs in defending a case, in which it has been accused of no wrongdoing. It is averred that complainant has neither informed opposite party no.2 about the issues faced by it in respect to his iPhone, nor approached an authorized service provider of opposite party no.2. It is averred that complainant has failed to rightly exercise its warranty rights by not approaching the authorized service provider of opposite party no.2 for evaluation of alleged defects and its rectification thereto, if any. It is averred that complainant himself has failed to submit his iPhone to opposite party no.2 or its autahorized service provider for evaluation of the exact cause of problem therein. It is averred that there is no deficiency in service on the part of answering opposite party and dismissal of complainant has been sought. However opposite party no.1 did not appear despite service and was proceeded against exparte vide order dated 19.03.2015 of this Forum.
3. Both the parties led evidence in support of their case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and has closed his evidence. On the other hand, opposite party no.2 tendered affidavit Ex.RW1/A, document Ex.R1 and has closed his evidence.
5. We have heard ld. Counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile iPhone on 13.11.2013 for a sum of Rs.71500/- as is proved from the Cash Memo/Bill Ex.C5 and as per noting Ex.C4 dated 30.06.2014 there was problem in the handset i.e. within warranty period and the opposite party no.1 submitted that the complainant should go to apple care because they do not have Apple Care. Hence from the alleged document it is proved that the defect in the mobile set appeared during warranty period and there is no service centre of opposite party no.2. Hence the opposite party no.2 i.e. manufacturer is liable for the defective handset. In this regard reliance has been placed upon the law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which is applicable on the facts and circumstances of the case it is observed it is a fit case where the refund of price is justified.
7. In view of the facts and circumstances of the case, it is observed that opposite party No.2 i.e. manufacturer shall refund the price of mobile set i.e Rs.71500/-(Rupees seventy one thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 22.01.2015 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision. The set in question is with the complainant. Hence the complainant is directed to hand over the mobile set in question to the opposite parties. Complaint is allowed accordingly.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
12.04.2016
................................................
Joginder Kumar Jakhar, President
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Komal Khanna, Member.
…………………………….
Ved Pal, Member.
