Haryana

Karnal

101/2014

Kuljeet Singh - Complainant(s)

Versus

Info Tech Computer & Communication - Opp.Party(s)

Jagdish Kashyap

26 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.101 of 2014

                                                          Date of Instt. 7.4.2014

                                                          Dtae of decision 20.4.2016

 

Kuljeet Singh r/o village Asmanpur Killa Farm, P.O.Pehowa, Kurukshetra.                                 

                                                             ………….Complainant.

                                                Versus

1.InfoTech Computers & Communications SCO No.204, Sector 12, U.E.Karnal through its Owner.

2.Apple India Pvt. Ltd. C/o 19^th Floor Concorde Tower C, UB City No.24, Vital Malya Road, Bangalore 560001..

                                                           ……… Opposite Parties.

                   Complaint u/s 27 of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma …….Member.

                  

 Present       Sh.Mukul Sharma Advocate for the complainant.

Sh.Abhishek Chaudhary Advocate for the OP No.2.

Opposite Party No.1 ex parte.            

 

ORDER:                    

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act-1986, on the allegations that he purchased Apple Touch Mobile IPOD  Touch 16 GB 4^th Generation  from the authorized dealer namely Mobile Zone Char Chaman, Karnal for a sum of Rs.18700/-,  vide bill No. 9466 dated 22.12.2012. One year warranty was provided for the unit but after some time problems of   auto power,, switch, heat  and low processing started in the same. He approached the authorized Service Centre of the company at MAC CLINIC MEDIA Solution at Noida  in May, 2013. Thereafter, he again approached the authorized service centre  with slow processing and ear phone problem on 29.9.2013. The service Centre replaced the ear phone as well as whole unit of IPOD touch 4^th generation and assured that replaced unit will work properly. After the repairs, the unit worked only for few days and again started battery backup problem. The complainant approached the Opposite Party No.1 for repair of the unit on 30.11.2013 and the service centre changed the software and returned the unit to him, but the problem of the unit was not  resolved and he received unit under protest. After  30.11.2013 the unit  again started giving problems, therefore,  approached the Opposite Parties on 16.12.2013 with problem of battery backup and slow processing. The service centre replaced the unit vide  reference No.537603732.  However,  the problems persisted in the replaced unit. Then he lodged  complaint with Customer Care of Opposite Party No.2 and the unit was submitted to Opposite Party No.1 on 20.12.2013 and submitted that the unit was having manufacturing problem, therefore, price of  unit be refunded to him. Customer Care of opposite party no.2 assured that solution would be provided within a week but till date no solution was given and unit continued to remain in possession of Opposite Party no.1. The Opposite Party no.1 lingered on the matter on one pretext or the other and finally refused to   refund the price of the unit. Thus, there was deficiency in services on the part of the Opposite Parties which caused him mental pain and harassment apart from financial loss.

2.                Notice of the complaint was issued to the Opposite Parties. None put into appearance on behalf of Opposite Party no.1, therefore, ex parte proceedings were initiated against Opposite Party no.1 vide order dated 20.5.2014.

3.                The Opposite Party No.2 filed written statement controverting the allegations of the complaint on various grounds. Objections have been raised that complainant has not disclosed the violation of any provision of the Consumer Protection Act on the part of Opposite Party No.2, who is manufacturer and allegations made by the complainant are incorrect and mis leading: that the complainant has no cause of action as the IPOD was working perfectly in fine condition, but the complainant deliberately did  not collect the same in spite of issuance of numerous of reminders  and  filed the complaint just to extract financial gain from the Opposite Parties that the Opposite Party no.2 or its authorized service provider  never denied any service to the complainant and that liability of the manufacturer arises when there is inherent defect in the product and the manufacturer cannot be made liable until or unless it is proved by adducing evidence that there was manufacturing defect.

               On merits, it has been  denied that the complainant approached the authorized service centre in May, 2013. It has been submitted that the complainant visited the service centre for the first time  on 29.9.2013 and raised issue regarding ear phone and slow working of the unit which were dutifully replaced free of cost by the Opposite Party no.2. Thereafter, the complainant visited the Opposite Party no.1 on 30.11.2013 and reported battery back up  issue. The Opposite Party No.1 checked, tested and found  that there was problem in the ipod and the same was  returned to the complainant. However, the complainant again visited the Opposite Party no.1 on 16.12.2013 with some battery issue being faced while playing games on the  ipod.  The complainant was provided with replacement as a goodwill gesture and the same was functioning optimally.  However, due to accommodative attitude of the Opposite Parties, the complainant became  emboldened and started feigning issues with his ipod time and again.  On 1.12.2013, the complainant approached the Opposite Party no.1 and claimed that battery back up was marginally better, but still he was not satisfied. The Opposite Party no.2 again ensured ipod  was thoroughly checked up intensive tests were carried out to ascertain if there was any hardware issue, but the ipod was found working properly. It has been further submitted that during conversation, the complainant admitted that battery back up was as per specifications while listening music, but battery drains faster only when playing games. The complainant was categorically informed that some games required heavy battery power and graphics involvement   causing the battery to run out faster. Therefore, there was no hardware fault. There was no manufacturing defect in the ipod and the same is working perfectly fine. There is no deficiency in services on the part of the  Opposite Parties.

4.                In the evidence of the complainant, he filed his affidavit Ex.C1 and  5documents Ex.C2 to Ex.C6.

5.                On the other hand, the Opposite Party no.2 produced affidavit of Deepak Jain Ex.O1 and documents Ex.O2 to Ex.O3.

6                 We have heard the learned counsel for the parties and have gone through the case file very carefully.

7.                The complainant had purchased on ipod manufactured by opposite party no.2 on 22.12.2012. It has been alleged that after sometime problems of auto power, heat and slow processing started in the ipod and he approached the authorized service centre of the company at Noida in May 2013. However, there is no documentary evidence of the complainant that he approached the said service centre in May 2013. The Complainant approached the authorized service centre on 22.9.2013 with the problems of slow processing and ear phone. The ear phone was replaced. It is also not in dispute that the complainant approached the Opposite Party no.1 on 30.11.2013 and reported battery backup issue. The copy of the service report  Ex.C4 shows that the complainant was not satisfied while receiving back the iPod on 30.11.2013. Thereafter, on 16.12.2013, the complainant again approached the Opposite Party no.1  with the problem of battery back up, while playing games as is evident from Ex.C5. The device was replaced and new device was given to the complainant. However, the complainant again complained on 20.12.2013 about the problem of battery backup and heating, as indicated in Ex.C6.

8.                 The learned counsel for the Opposite Party vehemently argued that the complainant approached the authorized service centre with the problem of iPod for the  first time  on 29.9.2013, after nine months of purchase.  During the period of nine months, the complainant had made no complaint regarding functioning of the  iPod, which shows that there was no manufacturing defect. Even the device was replaced on 30.11.2013. There is no cogent evidence that in the replaced device there was any manufacturing defect. The iPod was not got checked by the complainant from any expert to prove that the same was having any manufacturing defect. The complainant had made complaint on 20.12.2013 just before two days of the expiry of the warranty period regarding the problem of battery back up and heating, just to get refund of the price of the iPod on false pretext. Thus, complainant has altogether failed to prove that there was  any manufacturing  defect in the iPod , therefore, he is not entitled to  get refund of the price of the iPod.  In  support of his contention  he  placed reliance  upon  Santosh Gupta Versus Gupta Vision  First Appeal no.2034  of 2014, decided by the Hon’ble  Union Territory State Consumer Disputes Redressal Commission, Chandigarh on 20.6.2014 , wherein the complainant had purchased one  Mitashi LED TV  on 12.11.2011 with one year warranty.  He lodged first complaint on 20.9.2012 regarding distortion sound, which was attended by the engineer , who reported that there was no such problem in the TV, but the complainant insisted to  replace the same. Mother board was changed on 9.10.2012 and after that the complainant alleged that there was inherent or manufacturing defect. Under those circumstances, it was held that the allegations of the complainant regarding manufacturing defect in TV cannot be believed in the absence of any expert evidence to this effect. Bald assertion of the complainant that TV was suffering from inherent or manufacturing defect was not suffice to prove such allegation.  The learned counsel for the Opposite Party also referred to ACCEL  FRONTLINE LTD. VERSUS ANANT GOVIND KANDEPARKAR  2014(1) CPJ 51, wherein  the complainant failed  to produce  any cogent evidence to  prove any inherent defect or manufacturing defect in the mobile. Under those circumstances, it was held by Goa State Consumer Disputes Redressal Commission, Panji that if  mobile  had any defect it would not have worked well for more than seven months. The self serving statement of the complainant that there was inherent or manufacturing defect was not sufficient.

9.                To wriggle out of the aforesaid contention, the learned counsel for the complainant contended that service reports Ex.C3 to Ex.C6 are sufficient to prove that there was manufacturing defect in the iPod and defects continued even after replacement of the device, therefore, there was no need to seek report of expert to  prove that there was manufacturing defect in the iPod.  In this regard, he referred to  Head Marketing and communication, Nokia Versus Ankush Kapoor and Ors 2007(1) CPJ 120, wherein, the mobile set purchased by the complain ant was giving problems from the day one .Defects could not be rectified in spite of being repaired twice.  Under those circumstances, Hon’ble Union Territory Consumer Disputes Redressal Commission, held that handset was suffering from inherent defect and refund of the price claimed  by the complainant was allowed.   The learned counsel for the complainant further relied upon  Sony Ercsson India Ltd. Versus Anhish Aggarwal 2007(4) CPJ (NC) 294: 2009(I) CLT 15 wherein mobile set purchased by the complainant started giving troubles, as a result of which battery and charger of the handset were changed. Next time, hand set was again   taken with a problem   in keypad, as a result of which the handset itself was replaced by a new one on 21.9.2005. It was the case of the complainant that even new handset was not working properly. The Opposite Party was willing to replace the  handset with a new one, but the complainant apprehending the continuous  problems  from the handset, filed the complaint.  Under those circumstances, it was held  by the Hon’ble National Commission that deficiency in services on the part of the Opposite Party was at large and duly supported by the  factum  that even after changing components and change of  the handset, the problem was not solved as the handset was not working properly.

10.              In the instant case, it is quite evident from the documentary evidence Ex.C3 to Ex.C6 that iPod purchased  by the complainant was giving problems and those problems could not be rectified even after changing of some components and  replacing the device. The mere fact that no expert evidence was produced by the complainant to prove that iPod  was having manufacturing defect cannot be a ground to disbelieve the oral as well as documentary evidence of the complainant, which is sufficient to prove that there were continuous problems in the iPod and the same could not be rectified by the Opposite Parties.  From such facts and circumstances, it stands established that there was deficiency in services on the part of Opposite Party no.2.  Therefore, the complainant is entitled to get replaced the iPod with a new one of the same  value or get refund of the price of the iPod  paid by him.

11.              As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite Party no.2 either to replace the iPod  of the complainant with a new one of the same  value or refund of the price of the iPod  paid by him. The complainant is also allowed an amount of Rs.2200/- as compensation for mental harassment and litigation expenses. The Opposite Party no.2 shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
Dated:20.04.2016.

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.