IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 30th day of September, 2019
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 187/17 (filed on 11/08/2017)
Petitioner : Sreejith S. Nair,
Sreebhavan,
Villoonni P.O.
Kottayam – 686 008.
Vs.
Opposite Party : 1) Flipkart Internet Pvt. Ltd.
Vaishnavi Summit No.6/B
7th Main, 80 Feet Road,
3rd block, Koramangala,
Bangalore.
(Adv. Thomas Joseph)
2) Apple Indian Pvt. Ltd.
19th Floor, Cocorde Tower C,
City No. 24, Vittal Mallya Road,
Bangalore – 560001.
(Adv. Shyni gopi and
Adv. Sreekala Krishnadas)
3) Ample Technologies (Pvt) Ltd.
Erakkathil Building,
Vadavathoor, Vijayapuram,
Kottayam – 686010.
(Adv. P. Jayabal Menon and
Adv. Saji S. Nair)
O R D E R
Smt. Bindhu R. Member
The complainant’s case is as follows.
The complainant purchased an I phone from the 2nd opposite party on 22/05/2017 through the 1st opposite party’s online site. The price of the said I phone was Rs.26,000/- within days after the purchase of the said I phone, it became defective. The complainant tried to return the phone as per the return policy of the 1st opposite party. But he was informed that apple’s products were not liable to be returned. The complainant was also advised to entrust the phone with one authorised service centre of the 2nd opposite party. Thus the complainant entrusted the defaulted i-phone with the 3rd opposite party, who claims to be the authorised service centre of the 2nd opposite party. The 3rd opposite party detected the defect and issued Ext.A2, stating that there was some physical damage and corrosion. The 1st opposite party informed him that such defects did not come under their seller replacement policy. The complainant further alleges that he ordered for a brand new I phone with one year warranty but was delivered with a defective mobile. This is a clear deficiency in service and unfair trade practice from the part of the opposite parties. Hence this case.
Upon notice, the opposite parties appeared and filed their version.
The 1st opposite party in their version denied all the allegations in the complaint. The 1st opposite party being an online intermediary, is not liable for any defective goods. The said Flipkart platform is an electronic platform, which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. Moreover, the 1st opposite party falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act. Here also, the complainant has purchased the said phone from a third party seller, for which the 1st opposite party did not offer any warranty or services. It is further contended by the 1st opposite party that there is no privitiy of contract between the 1st opposite party and the complainant. The 1st opposite party is only a platform. So they are not liable for any manufacturing defect, defective after sale service etc and so the complaint be dismissed with cost to the 1st opposite party.
The 2nd opposite party in their version defended the allegations in the complaint by raising the contention that the complainant has failed to prove the identity of the device by not disclosing the IMEI number of the device. Not only that, the 2nd opposite party has stated that they are liable to follow the warranty conditions only upon the production of the device to one Apple Authorised Service Provider (AASP). Here the complainant has failed to give the device to one AASP and also did not disclose the identity of the device, hence the warranty conditions are not applicable. Hence the complaint is liable to be dismissed.
The 3rd opposite party also filed their version in which they affirm that 3rd opposite party is the authorised dealer and service centre of Apple Products in India. The complainant brought the phone for repair on 20/06/2017. On inspection, it was found that the defect was due to liquid damage. The 3rd opposite party has found liquid spill all over the internal components and corrosion in certain parts. Liquid spill is a physical damage and the device is not eligible to be replaced under limited warranty.
So there is no chance to replace the phone free of cost. As there is no manufacturing defect, warranty conditions do not apply. However, the 3rd opposite party was ready to replace the phone at an exchange price of 22,202/- and the same was intimated to the complainant on 21/06/2017. But he was not ready for the same and refused to take back the phone.
The complainant has failed to prove his complaint by producing a proper technical analysis report. So the complainant deserves dismissal on this ground alone. It is clearly mentioned in the terms of warranty and the repair acceptance form that physical damage caused due to negligent use comes under service exclusions and will not be replaced or serviced free of cost even while within the warranty period. So the compensation sought for is without proper computation and hence the complaint is only liable to be dismissed.
The complainant filed affidavit in lieu of chief examination and documents produced were marked as Exts. A1 to A5. He has deposed in the box.
The 2nd opposite party filed affidavit in lieu of chief examination. B1 and B2. Based on the above discussed facts and evidences, we have to consider the following points.
- Whether there is any deficiency of service and unfair trade practice from the part of the opposite parties?
- Whether the complainant is entitled for compensation?
Point No.1
The complainant is a bonafide purchaser of Apple I phone from the 1st opposite party, who is an internet platform. The complainant’s case is that the phone purchased by him started showing complaints within days and from the documents itself. We can infer that the device was entrusted with the 3rd oppsotie party after contacting 1st and 2nd opposite parties, within one month from the date of purchase.
The complainant entrusted the phone with the 3rd opposite party, who is admitted by an authorised service provider and dealer of the 2nd opposite party. 3rd opposite party in their version itself admits that they are the authorised service provider and dealer of ‘Apple’ products in India. The said authorised service agent of the 2nd opposite party examined the device and recorded that ‘all liquid contact indicators are triggered and corrosions seen inside the i phone’. Thus the inference of the authorised service centre of the 2nd opposite party itself shows that in the internal parts, corressions were seen. Now, least possibility is seen for a brand new phone to show corrosion within such a short span of time even if the phone was exposed to water. So the contention of the 2nd and 3rd opposite parties that as the damage caused was due to physical damage and so it is out of warranty conditions is not sustainable. Moreover, neither of the opposite parties have produced any documentary evidence to prove that the damage caused to the device was physical damage due to the irresponsible use by the complainant.
The 2nd opposite party’s main contention is that the complainant has failed to establish the identity of the phone, ie. IMEI number of the device. But in Exts. A1 to A3, the IMEI number of the phone has been written very clearly. So there is no point in alleging that the phone couldn’t be identified.
The 3rd opposite party in their version states that there is no manufacturing defect. But they have failed to explain as to how the newly purchased phone got corrosion within such a short span of 28 days.
The 2nd opposite party’s main contention is that the complainant did not approach an Apple Authorised Service Provider. But the 3rd opposite party herein has admitted that they are Apple’s Authorised Service Providers.
Here, like in many cases, a consumer has to run here and there to get justice. The 1st opposite party herein who is an internet platform wash their hands off from responsibilities.
This case stands as a proof of such case in which a common man, who becomes a consumer of the opposite parties companies, attracted by their projections, are often denied proper service for reasons in guise of technical reasons.
From the above discussions, we infer that there is a clear deficiency of service on the part of the opposite parties and the trade practice followed by the opposite parties is unfair.
Point No.2
Regarding Point No.2, the complainant being a bonafide purchaser, who purchased a brand new mobile phone using his hard earned money and despatching the phone got damaged immediately after the purchase, had a mental shock and thereafter the response from the opposite parties also caused mental agony to him. So we find that his mental agony can be quantified in terms of compensation.
Hence we are of the opinion that the complaint can be allowed as follows.
- The 2nd and 3rd opposite parties are directed to give a new mobile phone of the same model and of the same price, on failure of which pay a sum of Rs.25,999/- (Rupees Twenty five thousand Nine hindered and Ninety-nine) to the complainant.
- Opposite parties are jointly directed to a compensation of Rs.8,500/- (Rupees Eight thousand and five hundred) and Rs.5,000/- (Rupees Five thousand) towards cost of the litigation.
Pronounced in the Open Forum on this the 30th day of September, 2019.
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Appendix
Documents of petitioner
Ext A1 – Copy of invoice dtd.22/05/17 issued by 1st opposite party.
Ext.A2 - Copy of service report from 3rd opposite party
Ext.A3 - Copy of letter from 1st opposite party.
Ext.A4 - Copy of service report dtd.21/06/17 from 3rd opposite party
Ext.A5 – Copy of customer satisfaction report from opposite party 1.
Witness of the complainant
Pw1 – Sreejith S. Nair
Documents of opposite party
Ext.B1 : Copy of extract of the minutes of the Board meeting of Apple India
Pvt.Ltd. dtd.31/08/2015
Ext.B2 : Copy of warranty provisions / terms of Apple branded products
By Order
Senior Superintendent
