DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of January 2023
Filed on: 25/04/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO.162/2017
between
COMPLAINANT
Umashankar S., S/o. Sasikumar, 7/619A, ‘Sarayu’,MLA Road, Nadakkavu P.O., Udayamperoor, Ernakulam.
(Rep. by Adv. Jiby G.J., Chamber No. 237, KHCAA Chamber, High Court Buildings, Ernakulam, Kochi 31)
VS
OPPOSITE PARTIES
1. e Bay India Private Limited, represented by Arun Unni, Head-Trust, 14th Floor, N. Block, R-Tech Park, Off. W.E. Highway Goregaon (E), Mumbai - 400 063.
2. AAA Retail, Adeetya Vivekananda Society, Jodhpur Char resta. Jodhpur gam Satellite, Customer Relation Officer. Ahamedabad-380015 represented by Customer Relation Officer
3. Apple India Private Limited, represented by Customer Relation Manager, 19th Floor, Concorde Towers, UB City, No.24, Vvittal Mallya Road, Bangalore-560 001.
(Rep. by Adv. Sreekala Krishnadas, M/s. R&P Partners, 42/1917C, Old Railway Station Cross Road, Kombara, Ernakulam 682018)
F I N A L O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, the Complainant has placed an order for 4 16 GB black manufactured by 3rd opposite party, vide paisa pay ID No.444159 45467 dated 29th December 2016 with 1st and 2nd opposite parties as on-line E-business vendors based on the offers shown by them in their web site. The Apple iPhone 4 16 GB black was delivered to the Complainant’s mother Mrs. Radhika Sasikumar which is mentioned in the shipping address. The complainant placed the order for the said Apple iPhone 4, based on the assurance of 6 month’s warranty offered, but within one month of use itself, the Apple iPhone 4 started showing issues and suddenly the said phone switched off. Thereafter, the said phone is switched on. Further, the internet browser and e-mail option also showed issues before the phone switched off permanently. The opposite parties vide e-mails dated 9th February 2017, which was acknowledged by the first opposite party and issued reply e-mails as well. Though the first and second opposite parties have acknowledged the e-mails, there was no positive response from their end and still, the defective Apple iPhone is with the complainant. The said phone become defective within one month of delivery, and is not functioning, it is found to be a manufacturing defect and there was no proper response from the opposite parties. Since Apple iPhone is with manufacturing defect, and there is a clear deficiency of service on the part of the opposite parties, the complainant has no other option than to get the said defective Apple iPhone 4 16 4B black replaced with a new same phone without any issues or in the alternate refund an amount of Rs.7,999/- and the complainant has sent a notice through her lawyer for replacing the subject matter phone or in the alternative to refund the cost of the phone. Even though the request for replacement was placed before the opposite parties, they have not considered the request of the complainant, and the 2nd opposite party sent a reply stating that the Complainant will not get the service from the Apple service centre as the product is imported. But on the other hand, the 3rd opposite party had sent a reply through e-mail stating that they regret to inform the Complainant that Apple is unable to meet the Complainant’s request without mentioning any reasons for the same. The complainant had approached the Commission seeking an order directing the Opposite parties to provide a new mobile phone in place of the defective one, to pay Rs.1,00,000/- towards compensation and damages for loss and mental agony caused to the complainant because of the defective mobile phone and deficiency of service from the part of opposite parties and the costs of the proceedings.
2) Notice
Notice was issued from the Commission to the opposite parties and the first opposite party was served and not filed version. The second opposite party received the notice, but did not appear before the Commission and not filed a version. Consequently, the second opposite party is set ex-parte. The third opposite party received the notice, entered the appearance, and filed the version.
3) Version of the Third Opposite Party.
The complaint is malafide, devoid of merit, and contradicts established principles of law. A common market principle and also an established position of law that consumers who fail to provide details to identify disposed of devices are not eligible to claim any relief under the Consumer Protection Act, 1986. It is pertinent to mention that in order to claim Apple Warranty benefits provided by 3rd opposite party one has to comply with all the terms and conditions mentioned under the same.
In the present case, the Complainant has not been able to establish the identity of his device. In order to prove the same, the Complainant has to provide details of the serial number or the International Mobile Equipment Identity ("IMEI") number of his device. This will enable the 3rd opposite party to identify the said device with the records maintained by it. Each mobile phone has an IMEI number which is issued to it for security reasons. In the absence of the said details, this complaint itself is not maintainable. The Complainant has deliberately not provided any annexures in his complaint in order to establish the veracity of his complaint. It is apposite to state that such acts are in complete disregard to and in breach of the Warranty Policies of the manufacturer’s Warranty cannot claim relief under the Consumer Protection Act, 1986. It is stated that the provisions and terms of the Apply Warranty specifically mandate visiting AASP and diagnosing devices. This explains the fact that the Complainant's iPhone has failed to provide the IMEI number against the disputed device. It is pertinent to mention that the IMEI number is a fifteen-digit unique identification code that is provided to all iPhones, in absence of such a unique identification code 3rd opposite party cannot trace the iPhone. Additionally, the complainant even failed to provide a service report against the disputed device. It is also pertinent to mention that the Warranty also clearly explains that in order to claim benefits or service of the iPhone within the Warranty period the complainant would comply with the terms and conditions mentioned thereunder. Further, he even failed to provide any invoice/bill against the purchase of such an iPhone, hence his alleged claims are not identified, on this ground itself this complaint is liable to be dismissed. The Complainant is also guilty of materially concealing and suppressing material facts. The onus to prove allegations lies on the complainant and hence the complainant may be directed to furnish and prove his allegations in relation to the Complaint, particularly in view of the admission on part of the complainant brought on record by the 3rd opposite party in this case, which ex-facie squarely contradict the allegations of the Complainant. The instant complaint is not only misconceived but is designed to support a false case to suit the Complainant's malafide interest whereby the Complainant has sought to take undue advantage of his own negligence by seeking to misuse the general protection available to consumers in law.
4) . Evidence
The complainant had filed a Proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6.
Exhibit A-1. copy of the E-mail copy of the purchase order.
Exhibit A-2. Copy of the Invoice dated 30.12.2016.
Exhibit A-3. Copy of the e-mail communications between the complainant and 1st opposite party (Nos)
Exhibit A-4 Copy of the E-mail communications with the complainant and 2nd opposite party.
Exhibit A- 5. Copy of the E-mail communications with complainant and 3rd opposite party.
Exhibit A- 6. Copy of the lawyer’s notice.
The opposite party No.3 had produced 3 documents that were marked as Exhibits B-1- to B-3.
Exbt. B1: Copy of Warranty consition
Exbt. B2: Copy of Brochure
Exbt. B3: Copy of Extract of the minutes of the Board Meeting of Apple India Pvt. Ltd.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. As per Section 2 (d), a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
The complainant had produced a copy of the E-mail copy of the purchase order (Exhibit A-1) and a Copy of the Invoice dated 30.12.2016 (Exhibit A-2). Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, of 1986. (Point No. i) goes against the opposite parties.
In the above case, the complainant has produced Exhibits A-1 to A-6. All in support of his case. In the present case in hand, the Complainant had purchased 4 16 GB black manufactured by 3rd opposite party, dated 29th December 2016 with 1st and 2nd opposite parties as online E-business vendors based on the offers shown by them on their website. The complainant placed the order for the said Apple iPhone 4, based on the assurance of 6 month’s warranty offered, but within one month of use itself, the Apple iPhone 4 started showing issues and suddenly the said phone switched off. The said phone become defective within one month of delivery, and is not functioning, it is found to be a manufacturing defect and there was no proper response from the opposite parties. Since Apple iPhone is with manufacturing defects, there is a clear deficiency of service on the part of the opposite parties.
The counsel for the complainant submitted that even though several times the complainant had requested a replacement of the phone, the opposite parties were not amenable to the same and sent a vague reply. They have wasted the valuable time of the complainant and caused a huge loss to her because of the manufacturing defect and above said negligent acts of the opposite party huge loss happened to the complainant and limiting its claim for loss and mental agony to Rs.1,00,000/-.Considering the nature of the job of the complainant, proper functioning of the mobile phone is highly necessary. But due to the unexpected and sudden switch off of the mobile phone complainant suffered a lot. Due to the complaint about the mobile phone, the complainant's official duty was adversely affected and the complainant suffered a loss of Rs.1,00,000/-. All these happened due to the manufacturing defect of the phone and subsequent deficiency of service on the part of the opposite parties in handling and rectifying the complaints of the mobile phone purchased by the complaint after paying Rs.7,999/-. The third opposite party being the manufacturer of the said defective phone is equally liable and responsible for all the costs and consequences arising on account of the issues caused by the defective phone.
The 3rd opposite party submitted that, the Complainant has not been able to establish the identity of his device. In order to prove the same, the Complainant has to provide details of the serial number or the International Mobile Equipment Identity ("IMEI") number of his device. This will enable the 3rd opposite party to identify the said device with the records maintained by it. Each mobile phone has an IMEI number which is issued to it for security reasons. In the absence of the said details, this complaint itself is not maintainable. The Complainant has deliberately not provided any annexures in his complaint in order to establish the veracity of his complaint. It is apposite to state that such acts are in complete disregard to and in breach of the Warranty policies of the manufacturer’s Warranty cannot claim relief under the Consumer Protection Act, 1986. It is stated that the provisions and terms of the Apply Warranty specifically mandate visiting AASP and diagnosing devices. This explains the fact that the Complainant's iPhone has failed to provide the IMEI number against the disputed device.
In view of the above facts and circumstances of the case, we are of the opinion that the Opposite Parties No. 1 and 2 are liable to compensate the complainant and we are issuing the following orders.
i. The complainant shall hand over the mobile phone and IMEI number of the mobile phone to the opposite parties and the opposite parties shall rectify the defect within 15 days from the date of receipt of the mobile phone and IMEI number of the mobile phone by the complainant.
ii. The Opposite Parties No. 1 and 2 shall pay Rs.10,000 towards compensation and damages for loss and mental agony caused to the complainant because of the defective mobile phone and deficiency of service on the part of the opposite parties.
iii. The Opposite Parties No. 1 and 2 shall also pay the complainant Rs.3000/- towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Party within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission this 30th day of January, 2023.
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. copy of the E-mail copy of the purchase order.
Exhibit A-2. Copy of the Invoice dated 30.12.2016.
Exhibit A-3. Copy of the e-mail communications between the complainant and 1st opposite party (Nos)
Exhibit A-4 Copy of the E-mail communications with the complainant and 2nd opposite party.
Exhibit A- 5. Copy of the E-mail communications with complainant and 3rd opposite party.
Exhibit A- 6. Copy of the lawyer’s notice.
OPPOSITE PARTIES’ EVIDENCE
Exbt. B1: Copy of Warranty condition
Exbt. B2: Copy of Brochure
Exbt. B3: Copy of Extract of the minutes of the Board Meeting of Apple India Pvt. Ltd.
Exhibit A-4: Copy of letter received from the opposite party
Despatch date:
By hand: By post
kp/
CC No. 162/2017
Order Date: 30/01/2023
