BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.139 of 2017
Date of Instt. 09.05.2017
Date of Decision: 12.09.2018
Kundan Singh Bisht s/o Sh. Prem Singh aged about 32 years, DLF The Galleria Mall, Nakodar Road, Jalandhar City.
..........Complainant
Versus
1. Ebay India Pvt. Ltd., 14th Floor, North Block, R-Tech Park, Western Express Highway, Goregaon (East), Mumbai-400063, Maharastra.
2. Arun Saini s/o Naresh Kumar, Ward No.3, Bohra Road, Tehsil Pataudi, Haryana-122503.
3. Apple India Private Limited, 19th Floor, Concorde Tower C, UB City, No.24, Vittal Mallya Road, Banglore 560001.
4. iQor Global Services India Pvt. Ltd., F-2, 1st Floor, MBD Mall, G. T. Road, BMC Chowk, Jalandhar City.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Arvind Sharda, Adv Counsel for the Complainant.
OP No.1, 2 and 4 exparte.
Sh. Aditya Jain, Adv Counsel for the OP No.3.
Order
Karnail Singh (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant is privately working and he had purchased a mobile handset for his personal use. The OP No.3 is manufacturer/marketer of various electronic goods and has a marketing tie-up with OP No.1 to sell it products. The OP No.1 operates an internet marketing site/e-commerce site working under the name & style of “Ebay”. The OP No.2 operates as a shipper of OP No.1. The OP No.4 is the service center of OP No.3.
2. That on 16.10.2016, while going through the website of OP No.1, the complainant came across the details of mobile handset of Apple iPhone 5s-32GB-Gold. The complainant got impressed by the features as well as the price offered by the OP No.1 in respect to the aforesaid handset. This was so because the offered handset was made by world's most reputed company i.e. OP No.3. Accordingly, on 16.10.2016, the complainant made booking of the said handset along with online pre-payment of Rs.20,100/-, which was made through credit card to OP No.1. The said handset was delivered by OP No.1 through OP No.2 to the complainant. The said handset carried a warranty of one year. After receiving the said handset, the complainant started using the same. After few days, the said handset started giving problem of getting heating up during use. In this regard, the complainant approached the customer care of OP No.3, who advised the complainant to approach OP No.4, who is the authorized service center of the OP No.3 and accordingly, the complainant approached on 21.04.2017 to OP No.4 and stated about the problem being faced by him in the said handset. When the OP No.4 verified the IMEI number from their records, the complainant was told that according to their record the said IMEI Number was allotted to some different handset of the model iPad Mini 3-16GB-Silver, whereas the handset which was delivered to the complainant under the said IMEI number by the OP No.1 and 2 carried description Apple iPhone 5s-32GB-Gold. The OP No.4 further told to the complainant that the handset carrying the IMEI Number 354422060128442 has gone out of warranty as per their records and thereafter, the complainant immediately approached OP No.1 over email stating about whole incident, but to no avail. Prior to that the complainant even also contacted the shipper i.e. the OP No.2, but he refused to listen to the complainant and then again on 26.04.2017, the complainant again visited Service Centre i.e. OP No.4 and submitted the mobile handset for the said problem and accordingly, OP No.4 issued a job sheet against that, but refused to do the needful stating that the IMEI No.354422060128442 was allotted to iPad Mini 3-16GB-Silver and the warranty against the said handset has already been expired according to their record. OP No.4 also told to the complainant that the OP No.1 and 2 have sold a dismantled and assembled old mobile handset to the complainant and as such, OP No.4/Service Centre refused to intervene the matter. Even the OP No.1 has not replied to the email dated 21.04.2017 sent by the complainant and thus, the OP No.1 to 3 are jointly and severally responsible in selling an out of warranty/old mobile handset and that too reassembled one to the complainant intentionally and falsely representing it to be a new one, despite receiving sale price from the complainant in respect to a new mobile handset. The OP No.4 being the agent of OP No.3 at Jalandhar is also responsible for that.
3. This act of OPs of selling an out of warranty old set and that too a reassembled one, by falsely representing it to be a new one, despite receiving price for a new handset, amounts to unfair trade practice on the part of the OPs. This act of the OPs has caused mental harassment to the complainant and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the price of the mobile handset of Rs.20,100/- and further OPs be directed to pay compensation for mental harassment caused to the complainant, to the tune of Rs.20,000/- and be also directed to pay litigation expenses of Rs.11,000/-.
4. Notice of the complaint was given to the OPs, but despite service OPs No.1, 2 and 4 did not come present and ultimately, OPs No.1, 2 and 4 were proceeded against exparte.
5. OP No.3 duly served and appeared through its counsel and filed written reply, whereby contested the complaint by taking numerous plea that the present complaint is malafide, devoid of merits and contradicts established principles of law and further submitted that in the present case, the OP No.1 and OP No.2 had sold the iPhone 5s, which allegedly had an IMEI No.354422060128442 and Serial No.DLXN934JG5W8. When complainant approached to the OP No.4 on 26.04.2017 alleging that there were some heating issues with the said iPhone. The OP No.4 then took the said iPhone for inspection and checked the identity of the said iPhone by verifying its IMEI number. Upon verifying with its records, it found that the said IMEI number matched the records of an iPad Mini and not to the iPhone of the complainant. The OP No.4 then declined the service of the said iPhone as its IMEI was not matching it and is presently allotted to an iPad Mini manufactured by OP No.3. It was handed back to the complainant. So, it is clear that the OP No.1 has sold an illegally tampered iPhone to the complainant whose IMEI is not matching its model. Even the OP No.3/manufacturer has not authorized the OP No.1 or OP No.2 to sell any such product and they have sold the present iPhone to the complainant without any direction or authorization by the OP No.3. Hence, the complainant will have to pursue the matter against the OP No.1 and OP No.2 as there is no privity of contract between the OP No.3 with OP No.1 and 2 and further submitted that the OP No.3 is not aware of the transaction between the OP No.1 and OP No.2 and the complainant, nor was it aware of the alleged dismantled iPhone sold to him. The complainant should directly address his grievances with the OP No.1 and 2 as they have sold the alleged device to him. On merits, all the averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-7 and then closed the evidence.
7. Similarly, Sh. Bharat Mahajan on behalf of the OP No.3 tendered into evidence affidavit Ex.OP3/A along with some documents Ex.OP3/1 to Ex.OP3/3 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. Precisely, the case set up by the complainant is only that he purchased a mobile handset make Apple iPhone 5s-32GB-Gold from OP No.1 through online booking after making online pre-payment of Rs.20,100/- through Credit Card to OP No.1 and the said set was delivered to the complainant by OP No.1 through OP No.2 being a shipper of OP No.1, but the said mobile set having some technical problems and due to that reason, he approached all the OPs including manufacturer/OP No.3, who told to approach the service centre i.e. OP No.4 and when he approached the OP No.4, who told that the said mobile phone having IMEI No.354422060128442 is of the model iPad Mini 3-16GB-Silver not of iPhone purchased by the complainant and where upon the complainant stunned and approached again OP No.1 and 2, but having no fruitful result, then he approached OP No.3 and OP No.4, but they did not ready to compensate the complainant or hear the grievances of the complainant, thus, the instant complaint filed.
10. Obviously, in this case, the OP No.1, 2 and 4 did not come present despite service and the instant complaint is only contested by OP No.3 by taking simple plea that the mobile phone, so purchased by the complainant from OP No.1 is a tampered and dismantled because the IMEI number given to the said mobile phone, virtually IMEI number of one iPad Mini and as such, the said mobile phone has been illegally tampered with sold by the OP No.1 and 2 to the complainant and therefore, the OP No.1 and 2 are responsible and answerable to the complainant and there is no deficiency and negligence on the part of the OP No.3 and 4 because the OP No.1 and 2 are not the authorized dealer of the OP No.3 nor there is a privity of contract between OP No.3 and OP No.1 and 2 and thus, the complaint of the complainant against OP No.3 and 4 may be dismissed.
11. We have considered the respective version of both the parties and find that the OP No.3, who is a manufacturer of Apple iPhone and the product purchased by the complainant is not directly denied by the manufacturing firm/OP No.3 that it is not manufactured by the OP No.3, the simple plea taken by the OP No.3 is that the IMEI number given to the said mobile phone 5s is virtually of one iPad Mini and therefore, the said mobile phone is a tampered and dismantled. We find that the mobile phone purchased by the complainant from OP No.1 is having IMEI number of the Apple manufacturing firm and it is not for the customer to verify from each shop that whether he is an authorized dealer or to get verify whether he is having a certificate of authorized dealer from the manufacturing firm, when these things are not possible or practically cannot be applied in our society, we can believe after going through the advertisement or the board hanged by each shop that he is an authorized dealer of the so and so firm and similarly happened in the present case on a internet and advertisement given by the OP No.1 that he is authorized dealer of the Apple iPhone and accordingly, the complainant believing the same is a true, purchased the iPhone from OP No.1 and make the payment. The question remains the OP No.1 is mis-utilizing the name of the manufacturing firm iPhone and this fact came to the notice of the OP No.3/manufacturing firm through service centre or through complainant, when complainant approached to the service centre and got inspected his mobile phone in question, but thereafter, as per law, it is bounded duty of the manufacturing firm to take appropriate legal action against the OP No.1, who is illegally and un-authorizedly using the name of Apple India Private Limited Firm and become the dealer of that firm for selling the product, but obviously and for the best known reason, the OP No.3 has never taken any initiative for carry out criminal proceedings against the delinquent firm i.e. OP No.1, which shows there is some hanky-panky of the OP No.1 with the OP No.3 and due to that reason, both are still mum. When situation is so, then where the consumer go or whom he can approach. He run pillar to post for solving his grievances, but neither the OP No.1/the alleged dealer nor OP No.3/manufacturing firm is ready to hear the grievances of the complainant, then the complainant take a help of the law by filing the instant complaint.
12. From the above discussion, it has become clear that the product purchased by the complainant virtually having true and correct IMEI number of the manufacturing firm although it was issued to iPhone or to the iPad Mini, it is the duty of the manufacturing firm to make it clear whether the IMEI number is printed on a right product or not and further if any tampered and dismantled mobile phone has been sold by the dealer even then the duty and liability casted upon the manufacturing firm, that liability cannot be shifted upon the dealer or any other person, the remedy with the manufacturing firm is only to take appropriate action against the said fake dealer. So, with these observations, we are of the considered opinion that the OP No.1 is entitled to get a relief from OP No.3/manufacturing firm, whose product has not been found appropriate as per warranty.
13. In the light of above detailed discussion, the complaint of the complainant is partly accepted qua OP No.3 and accordingly, OP No.3 is directed to refund the price of the mobile phone i.e. Rs.20,100/- to the complainant and further OP No.3 is directed to pay compensation for harassment to the complainant, to the tune of Rs.10,000/- and litigation expenses of Rs.5000/-. The entire aforesaid payment i.e. Rs.35,100/- be made to the complainant within one month from the date of receipt of the copy of order, failing which the complainant will entitle to get interest on the whole payment @ 12% per annum from the date of purchase i.e. 16.10.2016, till its realization. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
12.09.2018 Member President
