IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 26th day of February, 2024
Filed on: 09.03.2023
Present
- Smt. P.R.Sholy, B.A.L, LLB (President in Charge )
- Smt. C.K.Lekhamma . B.A. LLB (Member)
In
CC/No.69/2023
between
Complainant:- | Opposite Parties:- |
Muhammad Firdouse P.M 1. Authorized Signatory
Panackal House Flipkart India Pvt. Ltd, Vaishnavi Summit
Mannanchery.P.O, Alappuzha Ground Floor, 7th Main, 80 feet Road,
Pin-688538 3rd Block, Karamangala Industrial Layout
Banglore, Karnataka-560034 IN
(Exparte)
2. Authorized Signatory,,
CIGIFIL RETAIL Pvt. Ltd,
Survey No. 28-29, Soukya Road,
Kacharakanahilli, Begaluru Rural,
Karnataka-560067
(Adv. Abhilash.C. Soman)
3. Authorized Signatory
Apple India Pvt. Ltd, 19th Floor
Concord Tower-C, UB City, No.24
Vittal Mallya Road, Banglore-01
(Adv. Sreedevi.S for Op.3)
O R D E R
SMT. SHOLY.P.R (PRESIDENT IN CHARGE)
1. Brief facts of the complainant’s case are as follows:-
Complainant had booked a Apple Airpods Pro 2nd generation on Bluetooth Headset through 1st opposite party and thereby the said product was delivered to the complainant through courier service. The complainant unboxed the cover contained the product in the presence of the delivery person and realized that the product was not the original product of 3rd opposite party. The cost of product which the complainant booked was Rs. 2,6900/-
Subsequently, when the complainant informed the 1st opposite party preferring complaint they replied that there is no provision for replacement and return of the product and also told that if there any complaint regarding the product it shall be informed to the 3rd opposite party.
The complainant had arranged finance from Bajaj Finance for an amount of Rs. 26,900/- for purchasing the said product. It was also found that the serial numbers shown on the product and product cover are different. The 1st opposite party made believe the complainant that the product was original manufactured by 3rd opposite party, against which the 1st opposite party had delivered a product not at all its original. Alleging deficiency in service from the part of opposite parties this complaint filed for re delivery of original product of Apple Airpods Pro 2nd Generation blue tooth Headset from 1st opposite party along with compensation Rs. 50,000/-. 1st opposite party remained exparte.
2. Version filed by the 2nd opposite party is as follows:-
The complainant has neither alleged any deficiency in service nor unfair trade practice on the part of 2nd opposite party. The relief sought in the prayer by the complainant is solely against opposite party No.1 & 3. Furthermore, the complainant has never even approached the opposite party No.2 with his grievance and therefore, this complaint against opposite party No.2 is devoid of merit and should be dismissed without further consideration.
The whole grievance of the complainant pertains to the delivery of the Wrong/Duplicate of the alleged product. The opposite party No.2 merely sold and supplied the product to the complainant in a sealed package as provide by the manufacturer. Irrespective of the warranty provided by the manufacturer, as a goodwill gesture the opposite party No.2 provides 7 Days Return/Replacement policy to its customer in case there is any issue with the product which cannot be rectified. However, in the instant matter the complainant never even approach the 2nd opposite party with its grievance. 7 days replacement policy lapses away and the sole responsibility to provide resolution lies upon the manufacturer and its authorized service centre. The opposite party No.2 cannot be made liable for any subsequent defect in the product. The opposite party No.2 has no role in providing after sale services to the complainant. Therefore, the complaint filed by the complainant is liable to be dismissed against the opposite party No.2.
3. Version filed by the 3rd opposite party is as follows:-
The complainant utterly failed to mention either IMEI number or serial number of Apple Air Pods Pro 2nd Generation in the complaint in order to prove the allegation of the complainant that the Airpods sold by the opposite party No.2 through opposite party No.1 is fake. The complainant should have deposited the said Airpods in any Apple Authorised Service Provider (AASP) and have got the same diagnosed by the trained technicians in order to find out whether it is a fake product and must have filed the report before this Commission. In the absence of the said diagnosis and report furnished by the AASP’s even the opposite party No.3. cannot confirm whether the Airpod sold to the complainant is original or fake. From the averments of the complaint itself it is clear that the complainant has neither approached any AASP for getting the said Airpod diagnosed nor has filed any diagnosis report issued by the AASP before this Commission to prove his allegation. Hence, the opposite party No.3 cannot confirm that the complainant has purchased an original product of the opposite party No.3 in the absence of the above said reports. Therefore, the complainant cannot be a consumer of the opposite party no.3 as per the consumer protection Act, 2019 and the said complaint is liable to be dismissed in limine as not maintainable against opposite party No.3 on this ground alone.
Complaint is not maintainable as the complainant has failed to provide vital information of the Airpods Pro 2nd Generation (Airpods) like serial number/IMEI Number in his complaint which is very important to trace out the model and history of repairs of the Airpods of the complainant. In these circumstances the opposite party No.3 is unable to trace the grievance made by the complainant.
The complaint is not maintainable as there is no cause of action against the opposite party No.3 and Opposite party No.3 is not a necessary party to this complaint. The complainant has only made the opposite party No.3 as formal party to the complaint and has claimed replacement of Airpod and compensation from opposite party No.1 in the prayer and not from opposite party No.3 The complainant is not eligible for the relief as prayed for.
4. On the above pleadings the following points raised for consideration :-
1. Whether there is any deficiency in service from the part of opposite parties?
2. Whether the complainant is entitled to get the reliefs as sought for in the complaint?
5. Reliefs and costs?
5. Evidence consist of oral evidence of PW1 and Ext.A1 to A4 and MO1 and MO2 on the side of complainant. No oral as well as documentary evidence from the side of opposite parties. Heard opposite parties 2 and 3.
6. Point No.1 and 2:-
Complainant’s case is that when he ordered an Apple Airpods Pro 2nd Generation Bluetooth Headset through 1st opposite party, the accepted product was found not the original product of 3rd opposite party. When he realized the said fact he complained to the 1st opposite party, but it was not redressed. According to the complainant the serial number of the product and it seen affixed on the package were different. Alleging deficiency in service the complainant filed this complaint for directing the 1st opposite party for providing original of the disputed product and also for allowing Rs.50,000/- as compensation for mental agony sustained the complainant.
Opposite party No.1 remained exparte since the notice returned as ‘left’.
Opposite party No.2 and opposite party No.3 filed separate version. At this point it is to be noted that the complainant did not pleaded any allegation against the opposite party No.2 and 3, nor seeking any relief from these opposite parties. Moreover PW1, during cross examination by the learned counsel appearing for 3rd opposite party it was deposed that the disputed product is not the product of 3rd opposite party and also reiterated that the 3rd opposite party was incorporated in the array only for proving his case. Further PW1 himself admitted that he is not entitled to get any relief from 3rd opposite party as the said product is not the product of the 3rd opposite party.
On perusal of MO2 and Ext.A1, it is not matching the serial number of the product. As suspected by PW1 it is seen on the box contained MO2 written as (S) Serial No. JLW2WTY2H6 and in Ext.A1 invoice it is written as SJLW2WTY2H6. Though MO2 shows a serial of “S” it is written as a different mode and naturally there arise a genuine doubt regarding the duplication of the said product. No contra evidence adduced by the distributor of the product. It is also pertinent to note that during cross examination PW1 also deposed that the seal of the box contained the product was found re-fixed after breaking it. This contention also remain unchallenged by the distributor. Considering the above facts and circumstances we are also taking a view that the opposite party did not delivered the product as shown in Ext.A1 invoice to the complainant. Hence the complainant is entitled to get the product described in Ext.A1 from 1st opposite party. In the said circumstance 1st opposite party is also liable to compensate the mental agony and subsequent struggle suffered the complainant and we fix it Rs.5000/- as compensation.
7. Point No.3:-
In the result complaint stands allowed in part.
A. 1st opposite party is directed to deliver the original Apple Air pod Pro 2nd generation Bluetooth Head set to the complainant and in that event the product in the custody of complainant shall be returned to the opposite parties.
B. 1st opposite party is also directed to pay Rs. 5000/- as compensation to the complainant.
C. Complainant is entitled Rs. 1000/- as cost of the proceedings from 1st opposite party.
The order shall be complied with within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 26th day of February, 2024.
Sd/-Smt. P.R. Sholy (President in Charge)
Sd/- Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Muhammad Firdouse.P.M(complainant)
Ext.A1 - Tax Invoice dtd.25/2/2023
Ext.A2 - Screen shot of Order status
Ext.A3 - Screen shot of Consumer Durable Loan details
Ext.A4 - Screen shot of settings
MO1 - Airpod (Product)
MO2 - Flipkart cover
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
