BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.346 of 2016
Date of Instt. 12.08.2016
Date of Decision: 23.08.2017
Anil Kumar aged 27 years S/o Brij Mohan, resident of H. No.8, Bhagat Singh Colony, Near Verka Milk Plant, Jalandhar Mobile No.9803579666.
..........Complainant Versus
1. Jagdambey Mobile House, Near Dolphin Hotel, Jail Road, Jalandhar. (Through its Prop/Partner/Authorized Representative.)
2. B2X Service Solution India Ltd, Business Bay Ground Floor, 182-R, Model Town, Jalandhar-144003 Through its Director/Manager/Authorized Representative
3. Apple India Private Limited, 19th Floor, Concorde Tower, “C” UB City, No.24, Vittal Mallya Road, Banglore-560001, Karnatka State (Through its Managing Director/Director/Authorized Representative.)
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh.Parminder Sharma (Member)
Present: Complainant in person.
OP No.1 and 2 exparte.
Sh. Aditya Jain, Adv Counsel for OP No.3.
Order
Karnail Singh (President)
1. The instant complaint filed by the complainant, wherein alleged that he purchased a mobile handset make iPhone 5S Grey 16GB bearing IMEI No.352083073920233 vide Invoice No.6890 dated 14.02.2016 from OP No.1. One year warranty was given for above said mobile handset and at the time of sale of above said mobile handset, it was assured by the OP No.1 that in case of any defect, if arisen in the said mobile handset, it would be repaired or replaced immediately by their authorized service centre. Having faith on the averment of OP No.1, the complainant purchased the above said mobile handset from OP No.1. Within a warranty period i.e. on 28.06.2016, the above said handset became out of order/dead. The complainant brought the above defects into the notice of OP No.1. The OP No.1 advised the complainant to contact their authorized service centre/OP No.2.
2. That as per direction of OP No.1, On 29.06.2016, the complainant went to OP No.2 and handed over the defective mobile handset. The OP No.2 checked the mobile handset and kept the same with them and issued a service job sheet No.JAL.290616215843 on 29.06.2016 to complainant. The OP No.2 told the complainant to collect the handset on 04.07.2016. When on 04.07.2016, the complainant went to OP No.2 to take the handset, the OP No.2 told the complainant that some liquid has entered in the handset, so, it cannot be repaired. However, the OP No.2 further told the complainant to collect the handset in evening on 04.07.2016. When on the said date i.e. 04.07.2016 in evening, the complainant went to take the handset, it could not be repaired. The complainant requested the OP No.2 to replace the handset with new one being under warranty. But the OP No.2 demanded Rs.10,000/- from the complainant for repair/replacement of said handset. When the complainant refused to give this huge amount, the OP No.2 returned the handset to complainant without removing the defect. It is pertinent to mention here that the said handset was new one, within warranty and the same was handled carefully by the complainant. There entered no liquid in the said handset. In view to save from repair/replacement of the said handset, the OP No.2 created such lame excuse for entrance of some liquid in the said handset. The complainant brought the defect into the notice of OP No.3, who ignored to attend the call of the complainant on one pretext or other. Defective and inferior quality handset having manufacturing defect has been sold to complainant by the OPs, which tantamounts to unfair trade practice. Non rectification of defect/non-replacement of said handset amounts to negligence and deficiency in service on the part of the OPs and accordingly the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the handset with new one of same quality and same make and in the alternative to refund the full cost of mobile handset as per bill with interest @ 9% from the date of purchase till realization and further to pay Rs.3300/- as cost of litigation and Rs.70,000/- as compensation for mental tension and harassment.
3. Notice of the complaint was given to the OPs and accordingly OP No.1 and 2 despite service, did not come present and ultimately OP No.1 and 2 were proceeded against exparte, whereas OP No.3 appeared through his counsel and filed written reply, whereby contested the complaint by taking preliminary objection that the present complaint is malafide, devoid of merit and contradicts established principles of law. It is a common market principle and also an established position of law that consumers, who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Consumer Protection Act, 1986 and further submitted that the provisions and terms of the Apply Warranty specifically exclude damage of products, which is the case in the present matter. The complainant has hidden the fact that he had damaged the iPhone by negligently handling and thereby rendering it out of warranty. The mobile set of the complainant was inspected by OP No.2 and found that the said device had liquid damage and had corrosion inside it. The iPhone was damaged due to the complainant's own fault and not a fault that can be attributed to OP No.3 or the device supplied by the OP No.3. It is further alleged that the complainant took his iPhone to the OP No.2 i.e. Service Centre alleging that it was out of order/dead. The OP No.2 took the iPhone and instructed the complainant that it would have to inspect the iPhone. Upon inspection, it was observed that there were traces of liquid inside the iPhone and there was corrosion, the same was shown to the complainant and explained that said iPhone was damaged and out of warranty, hence it could not be serviced and he acknowledged the same by signing on the service report on 01.07.2016. The complainant collected his iPhone from the OP No.2 on 04.07.2016 and acknowledged the fact that the iPhone was damaged and could not be repaired under warranty as it had breached the warranty provisions and it was also inspected to the complainant that it could be repaired if he paid the charges because the set is out of warranty but the complainant refused to do so and took his iPhone and left the showroom of OP No.2. On merits, the purchase of the mobile phone by the complainant is not denied but the remaining allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
4. In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn two affidavits Ex.CA and Ex.CB alongwith some documents Ex.C1 and Ex.C2 and closed the evidence.
5. Similarly counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A alongwith some documents Ex.OP3/1 to Ex.OP3/5 and closed the evidence.
6. We have heard the complainant in person and learned counsel for the OP No.3 and also gone through the case file very minutely.
7. From the arguments of both the parties, it has become clear that the complainant has purchased a mobile handset make iPhone 5S Grey 16GB from OP No.1 with a warranty of one year and invoice is produced on the file Ex.C1. Apart from that in order to establish that the phone of the complainant having manufacturing defect, the complainant has brought on the file Delivery Report i.e. Ex.C2, wherein problems described by the complainant is Power Related but after diagnosing the problem mentioned by the Expert is other problem not power related and similarly the OP has also placed on the file Job Sheet Ex.OP3/2, wherein described that after diagnosing, a liquid was found in the mobile, here one thing is very important to consider that the Delivery Report given to the complainant does not disclose any liquid in the mobile set. So, it means that the word of liquor was inserted by the OP in the Job Sheet Ex.OP3/2 later on just to defeat the right of the complainant to get the replacement of the mobile with compensation, if virtually there was a liquid damaged, then it should be mentioned in the Delivery Report also, which is Ex.C2. So, under these circumstances, we find that the judgment referred by the learned counsel for the OP, decided by the Hon'ble National Commission, cited in 2016(3) C.P.R. 136, title “Samsung India Electronics Private Ltd Vs. Saurabh Kapooria and Others” and on the same point further referred an other pronouncement of the Hon'ble National Commission, cited in 2016(2) C.P.J 101, title “Kiran Mishra Vs. Dentsplay India Pvt. Ltd”, we have gone through the aforesaid judgments and find that the facts of the aforesaid judgments of the Hon'ble National Commission are not identical to the facts of the case in hand, therefore these judgments are not applicable in the present case.
8. From the over all circumstances, it has become clear that the OP has not able to prove that the mobile has been damaged due to liquid inserted therein, if virtually liquid was inserted in the mobile then it must have been described in the Delivery Report, given to the complainant but nothing is mentioned therein rather the factum of liquid inserted in the mobile set, is described in the Job Sheet Ex.OP3/2, which was never given to the complainant. Apart from that if virtually there in a liquid inserted in the mobile then it is primary duty of the OP to examine the mechanic/engineer, who mechanically check the mobile set but for the best known reason, the OP has not examined the said mechanic/engineer, who checked the mobile set and in the absence of the evidence of said expert, the version of the the OP is not established rather the claim of the complainant that there is a inherent manufacturing defect in the mobile, is established. So, under these circumstances, we find that the complainant is entitled for the relief claimed.
9. In the light of our above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the cost of the mobile set i.e. Rs.22,500/- to the complainant along with interest @ 9% per annum from the date of purchase i.e. 14.02.2016 till realization, on return of the old handset to the company and further OPs are directed to pay a compensation to the complainant to the tune of Rs.5000/- and litigation expenses of Rs.2000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
10. 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 Parminder Sharma Karnail Singh
23.08.2017 Member President
