BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.114 of 2014

Date of Instt. 10.04.2014

Date of Decision :27.04.2015

Ramneek Anand aged about 37 years son of Satish Kumar Anand R/o Flat No.J-401, Bellevue Green Apartments, Park Avenue, Mithapur Kingra Road, Jalandhar.

..........Complainant

Versus

1. Currents Technology Retail (India) Limited, Ground Floor, 400R, Model Town Market, Jalandhar through its Prop/Partner/MD/ Authorized Representative.

2. Apple Service Centre, 186-L, Model Town, Opp.Nikku Park, Jalandhar through its Prop/Partner/Authorized Representative.

3. Apple India Pvt Ltd, 19th Floor, Concorde Tower-C, UB City, No.24, Vittal Mallya Road, Banglore-560001 Karnataka State, through its Director/MD/Authorized Representative.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.KC Malhotra Adv with Ms.Harleen Kaur Adv., counsel for complainant.

Sh.Amit Malhotra, Cluster Manager of OP No.1.

Sh.Hariqbal Singh Adv., counsel for OP No.3.

Opposite party No.2 exparte.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant purchased a mobile phone make Apple iPhone 4(8gb) white MD 198D bearing IMEI No.013274007538347 vide invoice No.00000P0005000000401, for Rs.19500/- from opposite party No.1. One year warranty was given by opposite parties for the above said handset. Within warranty period various defects arose in the above said mobile phone handset. At first its net-work/call system failed and hanging problem arose. The complainant approached opposite party no.1 and told the said problem to opposite party No.1. The opposite party No.1 advised the complainant to approach their service centre/opposite party No.2. The complainant approached the opposite party No.2 and told the said defects in the month of December 2013. The opposite party No.2 checked the defects and attached the mobile with their computer and told the complainant that the handset has been updated but the problem remained same as before. In the month of February 2014 the complainant again went to opposite party No.2 and told the above said defects. The opposite party again attached the the mobile handset with their compute and told the complainant that the mobile has been updated and assured that the said problem shall not take place in future but after some days the same problem arose. Then the complainant again went to opposite party No.2 and told for the said problem. The opposite party No.2 told the complainant that its IOS Version is old and advised the complainant to update the same through internet. The complainant updated the same on internet as per advise of opposite party No.2 but the problem remained same as before. In the Ist week of April 2014 the complainant again went to opposite party No.2 but their shop was closed. The complainant again and again visited the opposite party No.2 but came to know through neighbours that they have closed their service centre permanently. The complainant again visited the opposite party No.1 and told about the closure of service centre/opposite party No.2. The opposite party No.1 told the complainant to wait for some time as the new service centre would be opened within few days. But the new service centre of opposite parties No.1 & 3 has not been opened so far. The complainant contacted customer care i.e call centre phone No.18004250744 who lodged the complaint of the complainant and gave reference No.59771771 dated 8.4.2014 and advised the complainant to update the mobile through internet. The professional staff of company phone the complainant vide their phone No.+6564808380 on 8.4.2014 at 6.29 PM. It took about 35 minutes for getting restore the mobile phone but the problem still remained same as before. The network/call failed and hanging problem is still existing in the said mobile phone which the opposite parties have failed to remove. On such like averments, the complainant has prayed for directing the opposite parties to replace the mobile handset of the complainant or to refund its price to him. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties No.1 & 3 appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that it had instructed the complainant to approach the opposite party No.2 for post handset sale services, as the answering opposite party is not involved in after sale service to the handset in question. The complainant approached the second opposite party for availing services to the handset in question. In such circumstances, this answering opposite party deem it appropriate not to respond to the various averments and allegations of the complainant relating to the services availed by the complainant from other opposite party, as the same are not within the knowledge of this answering opposite party. The second opposite party is an independent service provider appointed by the manufacturer to provide service to Apple customers and the answering opposite party is an authorized retailer appointed by the manufacturer only to sell apple products to apple customers. The answering opposite party shall not be held responsible for the service related issues between the complainant and service provider. Further, the answering opposite party has not rendered any services to the complainant and as such the answering opposite party is not liable for deficiency in service. Furthermore, it was gathered from known sources that the second opposite party had shut down its operations unexpectedly. On account of the above the answering opposite party suggested the complainant to wait and get services from the new service centre which shall be opened at Jalandhar shortly. It denied other material averments of the complainant. In its separate written reply, opposite party No.3 pleaded that the complainant called up the opposite party No.2's customer care for the first time only in April 2014 i.e when the warranty of his iPhone was getting exhausted. It is submitted that the conduct of the complainant in reporting unfounded and baseless issues at the fag end of the warranty period casts serious aspersion on the veracity of the contentions of the complainant and throws reasonable apprehension on the motive of the complainant in instituting a complaint before this Forum only to gain wrongful advantage by misusing the provisions of law. It is submitted that it is an accepted principle of consumer law, that a replacement is provided only when there is a manufacturing/hardware defect in the product, subject to the provision of warranty. It is also important to note that any defect can be ascertained only by proper assessment of the product by competent technical experts (in this case apple authorized service provider) who generate a proper service report on the finding of defects, whatever is found. It may be noted that in the present case, it is the complainant who has reached an unfounded self conclusion of alleged issues with his iPhone despite no defect found by the apple care technical experts/absence of any proof substantiating the complainant's bald allegation. It is important to note that when complainant never visited an apple authorized service provider, it is inappropriate to allege defect without the basis of any finding. It is submitted that the allegation of the complainant assuming though not admitted that he faced any problem with his iPhone relates to network system. It is submitted that failure of network system may be attributed to problem in network connection by the telecom service provider which the complainant may have subscribed and such issues do not have any bearing to the manufacturing aspect of the iPhone. It is submitted that assuming the complainant had any genuine problem with his iPhone he could have contacted the other AASP in Jalandhar city which is "The Service Solutions" operating from 182-R Business Bay, Ground Floor, Model Town, Jalandhar. It is submitted that the complainant avoiding a visit and assessment of the iPhone through the AASP throws reasonable apprehension on the ulterior motive of the complainant. The conduct of the complainant shows that he was not interested in getting assessment of his iPhone, assuming he had faced any issues with his iPhone rather it shows that the complainant is interested in usurping wrongful gain by misusing the provisions of law. It is however submitted that the other AASP which is in Jalandhar City is "The Service Solutions" operating from 182-R Business Bay, Ground Floor, Model Town, Jalandhar. It denied other material averments of the complainant.

3. Upon notice, opposite party No.2 did not appear and as such it was proceeded against exparte.

4. In support of his complaint, learned counsel for complainant has tendered into evidence affidavits Ex.CA/1 and Ex.CA alongwith copies of documents Ex.C1 and Ex.C2 and closed evidence

5. On the other hand, learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A alongwith copies of documents Ex.OP3/1 and closed evidence. Further Sh.Amit Malhotra, Cluster Manager of opposite party No.1 has tendered affidavits Ex.OP1/A and Ex.OP1/B and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the present parties and further gone through the written arguments submitted on behalf of complainant and opposite parties.

7. The complainant purchased Apple iPhone in question from opposite party No.1 for Rs.19500/- vide retail invoice dated 11.4.2013 Ex.C1. According to the complainant, during warranty period various defect arose in the mobile handset in question and its network/call system failed and hanging problem also arose. Further according to complainant, he approached opposite party No.1 but advised him to approach service centre i.e opposite party No.2 but opposite party No.2 failed to rectify the defect and ultimately it was found that opposite party No.2 service centre has been closed. Further according to the complainant he contacted customer care centre of opposite party No.3 and reported about the problems in his handset which the opposite parties have failed to remove. According to the complainant, authorized dealer or retailer can not wash off their hands after making sale and shift the burden to the manufacturer and it is his responsibility to carry out the terms of the warranty and in turn he may involve the manufacturer in fulfilling his obligations under the warranty. On the other hand, according to opposite party No.1, it is neither manufacturer nor authorized to perform after service to the handset in question. According to opposite party No.3, there is no manufacturing defect in the mobile handset and the complainant approached the customer care centre for the first time in April 2014 when the warranty was going to expire. Further according to opposite party No.3, there is no reliable evidence of approaching Apple authorized service centre and in case the complainant had any genuine problem with his iPhone he could have contacted other service centre in Jalandhar which is "The Service Solutions" operating from 182-R Business Bay, Ground Floor, Model Town, Jalandhar. Further according to opposite party No.3, the alleged problems could also be an account of network problem which is provided by the telecom service provider. We have carefully considered the contentions advanced by the present parties. So far as liability of the dealer is concerned, it can not wash off his hands after sale and say that it is duty of the manufacturer of the product. In Balaji Motors Vs. Devendra & ANR, II(2013) CPJ 534(NC), the Hon'ble National Commission has held as under:-

"We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. Vide impugned order passed by the State Commission, it has only been stated that since the complaint was made to the dealer within the warranty period, it was the duty of the dealer to attend to the same and repair the vehicle. The petitioner was directed to repair the vehicle to the satisfaction of the appellant within three months. We do not find anything wrong with this order. If the vehicle is presented before the dealer within the warranty period, it is his duty to attend to the complaints, if any, and rectify the defects to the satisfaction of the complainant. In case, the dealer thinks that there is no defect in the vehicle, it can give a certificate to this effect that the vehicle is fit from all angles. Such a certificate shall be open to scrutiny by any expert/specialized agency. However, the dealer can not escape his responsibility of attending to the complaints if made before it during the warranty period".

8. So if the complainant has approached the dealer during warranty period, it was his duty to attend to his problem and for that purpose, he might have involved the service centre and the manufacturer. The complainant has filed the present complaint on 9.4.2014 i.e during warranty period. In its written reply, opposite party No.3 has also admitted that the complainant called customer care centre for the first time when the warranty of his iPhone was getting exhausted. So it means that complainant has also approached the customer care centre of opposite party No.3 during warranty period. The complainant has not lead any reliable evidence to prove that there is any manufacturing defect in the mobile handset in question. He has not examined any expert witness to prove this fact. The liability of the dealer or manufacturer during the warranty period is to rectify the defect in the product, if any, unless it is established that there is some manufacturing defect in it. The failure of network call system as pleaded by the complainant in para 3 of his complaint, could very well be due to network problem of telecom company and not due to any defect in his iPhone. However, proper conclusion can only be drawn after the mobile handset has been examined by the present service centre of the opposite party No.3. In absence of any reliable evidence regarding any manufacturing defect in the mobile handset in question, replacement or refund of price is not justified.

9. In view of above discussion, the present complaint is partly accepted and opposite parties No.1 and 3 are directed to rectify the defect in the mobile handset of the complainant, if any, and for this purpose he is advised to approach the present service centre of opposite party No.3 whose the address has been mentioned in the written reply of opposite party No.3 and to submit his iPhone to it for rectification of the above said alleged defect. In case the said defect is found in the handset and can not be removed then opposite party No.3 shall either replace the handset of the complainant with new one of the same make and modal or in the alternative refund its price to him. The complainant is awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

27.04.2015 Member Member President