Delhi

North East

CC/293/2015

Bajrang offset - Complainant(s)

Versus

M/s Apple India Pvt. Ltd. - Opp.Party(s)

23 Oct 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 293/15

 

In the matter of:

 

	M/s.Bajrang Offset Through Proprietor Shri Sunil Sharma Having Office at: Plot No. 5-A, Damodar Park, Shahdara, Delhi-110095   Also at : Shri Sunil Sharma R/o A-39, 4th Floor, Mansarovar Park Shahdara, Delhi 110032	Complainant
	Versus
1           2         3       4	Apple India Pvt. Ltd. Registered Office at: 19th Floor, Concorde Tower C, UB City no. 24, VittalMallya Road Bangalore, Karnataka-560001   The Manager Apple Delhi Head Office N-9, Outer Circle, Connaught Place New Delhi-110001   M/s Sargam Electronics C-25, PreetVihar Delhi-110092   M/s. B2X Service Solutions India Pvt. Ltd. A-1/63, First Floor, PaschimVihar, Near Lal Market, Delhi - 110063	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

14.08.2015 23.10.2020 23.10.2020

 

 

Mr. Arun Kumar Arya, President(Addl. Charge)

Ms. Sonica Mehrotra, Member

 

ORDER

Ms. Sonica Mehrotra, Member

 

1. Fact culled out in the present complaint are that the complainant is a proprietorship firm represented through its proprietor Mr. Sunil Sharma who had purchased an Apple iphone 6 16GB space gray manufactured by OP1 and OP2 which are its India and Delhi office respectively on 29.12.2014 from OP1 vide invoice no. SPREET-08856 for a sum of Rs. 53,500/- inclusive of VAT. The said mobile phone was purchased by the complainant, proprietorofcomplainant companyin the name of his firm Bajrang Offset and the complainant had also taken mobile insurance for the said phone from Mobile Assist. However, the subject phone was giving hanging and heating problem from the very day of its purchase for which the complainant approached OP4, Authorized Service Centre (ASC) of OP1 & OP2 in early January 2015 for rectification of defect and OP4 replaced the said handset with a brand new one of similar specification with assurance of its smooth functioning on 09.01.2015. But the new handset also started giving heating and hanging problem within a week of its use for which the complainant again visited OP4 on 09.01.2015 when OP4 kept the subject mobile in its custody and told the complainant that the same be handed over after repairs and when the complainant asked the OP4 about the exact nature of defect in the handset, OP4 evaded the question by saying that the mobile phone has some software problem. Thereafter, the complainant was handed over the subject mobile phone by OP4 but barely within three weeks of its usage, the handset again started giving the same problem of overheating, hanging and getting stuck while functioning and therefore complainant had to approach OP4 again on 29.01.2015 and this time OP4 assured the complainant that they will search the main problem in the handset to permanently cure the defect therein and kept the phone in their custody and returned the same after some time to the complainant but gave no proper explanation for the defect in the handset except again stating that there were software issue in it. The subject mobile phone started to malfunction in June 2015 i.e. after five months from the last repair for which the complainant again had to submit it with OP4 on 17.06.2015. However on 22.06.2015, when the complainant went to OP4 to collect the said handset, to his utter shock, the OP4 refused to repair the handset and told the complainant that it was because the complainant had got the same repaired from an unauthorized outside service center to which allegation the complainant resisted by telling OP4 that when the handset was under warranty, there was no need for the complainant to get the same repaired from an outside unauthorized agency but OP4 did not entertain the complainant on this ground and refused to undertake repair of the handset. The complainant vide legal notice to OPs dated 02.07.2015 through its counsel called upon the OPs to exchange the defective handset with a new one in addition to compensation of Rs. 1,00,000/- but the OPs, despite in receipt of the said legal notice chose to ignore the same therefore the complainant left with no other option to recover his hard earn money, was constrained to file the present complaint against the OPs praying for is issuance of direction against the OPs to refund the cost of mobile phone i.e. Rs. 53,500/- alongwith compensation of Rs. 1,00,000/- for mental agony and harassment and Rs. 21,000/- towards litigation charges.

Complainant has attached original purchase invoice of the Apple iphone 6 purchased from OP3, copy service report / job number DELL 17061590956 dated 17.06.2015 issued by OP4 and copy of legal notice dated 02.07.2015 by complainant’s counsel to OPs alongwith postal receipt.

2. Notice was issued to the OPs on 19.08.2015. OP2 & OP3 failed to appear despite service effected on 24.08.2015 and 22.08.2015 respectively and therefore were proceeded against ex-parte vide order dated 20.10.2015. OP4 entered appearance on 07.09.2015 and was handed over copy of the complaint with annexures. However, it failed to appear thereafter as also failed to file its written statement and therefore OP4 was also proceeded against ex-parte vide order dated 15.12.2015. OP1 entered appearance and filed its written statement vide which while admitting the factum of the complainant having purchased the subject mobile phone from OP3 on 29.12.2014, resisted the complaint on grounds that the subject mobile phone was purchased by complainant in the name of his firm M/s Bajrang Offset for commercial use and therefore complainant is not a consumer within the meaning of Section 2(1)(d) Consumer Protection Act and even otherwise had wrongly arraigned OP2 claiming it to be OP1’s Delhi office whereas OP1 does not have any branch office as shown in OP2 which was an unknown and unrelated entity and prayed for expunging the same from the array of the parties. OP1 took the defence that when the complainant approached OP4 in early January 2015 with complaint regarding the subject handset, OP4 had replaced the same with a brand new handset on 06.01.2015 in compliance of its terms of warranty. Thereafter when the complainant had again approached OP4 on 29.01.2015 with complaint of overheating and frozen apple logo, the OP4 took the subject handset for repair and found no hardware problem but there was only a software issue found which was updated and the mobile was handed back to the complainant. Thereafter the complainant used the subject handset successfully for next five months and once again when he approached OP4 in June 2015 reporting Apple logo stuck, network issue and heating issue, the subject handset was deposited with OP4 and OP4, on preliminary examination of the handset observed that there was dent on the enclosure of the handset which observation is expressly mentioned in its service report dated 17.06.2015 and on detailed exanimation of the subject handset, OP4 observed that the handset had unauthorized modification by a third party who namely changed Apple’s internal SIM card tray reader and there was presence of major soldering on the main logic board all of which unauthorized modification had rendered the subject handset beyond economicalrepair and out of warranty for which reasons the complainant was rightly denied service  / repair of the same by OP4 as both OP1 & OP4 were no longer under obligation to repair the same. OP1 urged that the warranty provided by it becomes void in case the product manufactured by it is modified to alter functionality and capability without the written permission of OP1 or where any damage is caused to a device by any unauthorized service provider other than an authorized service provider of OP1. OP1 reproduced the relevant warranty terms and conditions in this regard and its limited applicability clause. OP1 submitted that the problems in the handset of the complainant are a result of the unauthorized modification of handset got done by him and cannot be attributed to any manufacturing defect in the subject handset and even otherwise complainant had not adduced any expert evidence to prove the alleged manufacturing defect in the handset, defects in which were clearly informed to him by OP4 to have been caused by unauthorized modification by a third party rendering the phone out of warranty. OP1 placed on record the pictures / photographs of the subject handset which were taken during its examination by OP4 which clearly showed tampered SIM tray card reader and presence of marks indicating major soldering on the main logic board of the handset. Lastly, OP1 submitted that they cannot be any presumption of complainant not having allegedly tampered or undertaken unauthorized modification of the handset merely because the same was under warranty and denied the allegation of the complainant against OP4 having put an alien element inside the subject handset to render its warranty void and OP1 submitted in this regard that OP4 never undertook any repair of hardware component of the handset in question at any point and had only upgraded the software of the handset without touching the hardware component. For defence taken, OP1 prayed for dismissal of the complaint. OP1 has attached photographs of the unauthorized modification and soldering done on handset as alleged by it against complainant.
3. Rejoinder in rebuttal to the defence taken by OP1 was filed by the complainant vide which he took the objection of the written statement not having been accompanied with the board resolution / authorization in favour of its signatory and urged that since the subject handset has been in the custody of OP4 since June 2015, the complainant was forced to purchase another handset of Samsung A500 Gold costing Rs. 19,500/- which amount OP1 &OP4 are liable to pay him. Complainant denied having purchased the subjecthandset for commercial use as alleged by OP1 on ground of it being a mere assumption since the same was purchased in his firm’s name. Complainant alleged that OP1, OP2 & OP4 are guilty of poor services towards the complainant and non-responsiveness shown to his legal notice and therefore liable to pay damages to the complainant while admitting the replacement of the earlier handset by a brand new one by OP4 on 06.01.2015 and submitted that it was so done because OP4 was aware of the manufacturing defect in the previous handset for which reason OP4 had replaced the same instead of repairing it. Complainant submitted that OP4 was concealing that the complainant was facing problem in the subject handset in the nature of heating, hanging and handset getting stuck while working for which he approached OP4 repeatedly and could never use the subject handset successfully as it was giving recurring problems. Complainant denied getting any unauthorized modification or soldering done on the subject handset which was lying with OP4 since June 2015 and only OP4 and its employees would know what they did with the complainant’s phone in their custody and are trying to escape their liability by putting allegation on the complainant for their wrongful act which has caused wrongful loss to the complainant. Complainant alleged that OP4 had intentionally caused damage to the handset by taking out its original SIM tray and was trying to conceal its own folly and blaming complainant for alleged unauthorized modification to escape its liability. Therefore complainant prayed for relief claimed.
4. Evidence by way of affidavit was filed by complainant exhibiting the documents relied upon as Ex CW1/1 to CW1/9.
5. Evidence by way of affidavit was filed by OP1 through its Country Legal Counsel exhibiting the documents relied upon viz copy of board resolution vide minutes of board meeting held on 31.08.2015 authorizing its signatory of the affidavit and copy of images evidencing the unauthorized modification of the iphone as annexure R1 and R2 respectively.
6. Written arguments were filed by both parties i.e. complainant and OP1 in reassertion / reiteration of their respective grievance / defence. OP1 placed reliance on citation mentioned in written statement and also placed record copy of Power of Attorney effective as on 21.10.2014 authorizing, Ashish Bali as its lawful Attorney.
7. At this stage of final proceedings,  OP4 entered appearance on 29.11.2017 before this Forum apprising that it has filed a Revision Petition before Hon’ble SCDRC Delhi challenging the ex-parte order dated 15.12.2015 passed by this Forum and the on next date of hearing i.e. 10.01.2018, OP4 placed on record copy of order date 03.01.2018 passed by Hon’ble SCDRC Delhi in RP no. 140/2017 setting aside order dated 15.12.2015 and reinstating defence of OP4 on payment of cost of Rs. 8,000/- to the complainant and on the same date OP4 filed it written statement vide which it took the preliminary objection of complainant having purchased the subject phone in his firm name solely for commercial purpose as can be seen from its purchase invoice too and further that the complainant had availed of  mobile insurance for the subject handset from Mobile Assist Co. On facts and merits, OP4 resisted the complaint on ground that when the complainant first approached OP4 on 03.01.2015 with handset issue of “Whatsapp crash during post restoration”, OP4 generated service report DEL 03011550745 and OP4 asked the complainant to submit the subject handset for further diagnosis and OP4’s engineers diagnosed the problem as an app issue and not that of hardware and upgraded the operating software of the handset and handed over the subject mobile phone to the complainant on 06.01.2015 with action taken “iphone having app issues not hardware issue TSPS done decline by apple case ID:- 725170281iphonereturned without repair” but on the said date, when the complainant was using the apps, he noticed that app was blanking out while being used and therefore submitted the handset on the spot for further repairs and under jobsheet no. DEL 06011551586 dated 06.01.2015 with problem reported “app blank out, while using the facebook and whatsapp other also”. The engineer of OP4 diagnosed the problem of internal iphonemic not working properly and the subject handset was replaced with the brand new one and the complainant took the delivery of the same i.e. new handset on 09.01.2015 as against complainant’s submission of having submitted any handset on 09.01.2017. OP4 further submitted that the complainant had visited it on 29.01.2015 with problem of heating and mobile stuck on Apple logo for which OP4 asked the complainant to submit his handset for checking the said defect as often the handset got stuck on Apple logo due to upgrading the software through Wi-Fi and OP4’s engineer checked the handset and reinstalled the software after all tests run passed in OK condition. Thereafter, the complainant was called upon by OP4 to collect the handset and complainant visited the OP4 on 31.01.2015 to collect the same when OP4 informed him that the software had got corrupted to poor signal of Wi-Fi during updation by the complainant and asked the complainant to update his handset through LAN and informed him that software was reinstalled and problem solved vide service report no. DEL 29011556546. OP4 while admitting that the complainant had submitted that handset again on 17.06.2015 vide service report no. DEL 17061590956 with problem of no power on, stuck on Apple logo, network issue and heat issue submitted that the screening center of Apple India Pvt. Ltd. found unauthorized modification in the subject handset and soldering near the SIM card tray reader with SIM tray change due to which the screening center of Apple India Pvt. Ltd. declared that there was an unauthorized modification and therefore denying providing any service under warranty in accordance with the terms and conditions of Apple India Pvt. Ltd. which in such a case cannot entertain any repair under warranty in the event of third party interference in the handset. Lastly, OP4 urged that OP4 & OP1 never use soldering machine in their office because they only replace the handset or replace its part without doing any soldering on the handset as the handset can be repaired by replacing the parts or by replacing the whole unit only and therefore soldering cannot be done in the handset. Therefore OP4 prayed for dismissal of complaint.
8. No rejoinder in rebuttal to the defence taken by OP4 was filed by the complainant as per his voluntary statement giving in hearing held on 28.02.2018.
9. Evidence by way of affidavit was filed by OP4 through its Center Manager exhibiting copy of the service report and delivery reports alongwith copy of images of unauthorized modification as EX- DW4/1 to Ex DW4/8.
10. Written arguments were filed by OP4 in reiteration in its defence. On direction issue by this Forum to OP4 in hearing held on 28.11.2018 to produce the subject mobile phone in question before this Forum which was in its possession since 2015 to prove the soldering by a technical expert, OP4 on hearing held on 13.03.2019 filed affidavit of Dheeraj Kumar, Service Engineer of OP4 deposing that the subject handset was sent to the screening center of Apple India Pvt. Ltd. which found unauthorized modification and soldering in the handset and therefore declined service under warranty and also deposed of having checked the subject handset and found soldering near its SIM tray card reader and SIM tray changed. Further OP4 by way of laptop exhibition before this Forum showed images of soldering done on the subject mobile phone and compared a non-soldered – untampered mobile of the same model iphone 6 for comparative purpose to prove its allegation. OP4 further placed on record the photographs of the soldered portion of the subject mobile phone alongwith accompanied affidavit of its Service Engineer.
11. We have heard the rival contentions of all parties and have thoroughly perused documents placed on record by each one of them and given our anxious consideration. Admittedly, the first Apple iPhone 6 16 GB space gray bearing IMEI no. 356983063952110 purchased by the complainant from OP3 on 29.12.2014 had some inherent defects of whatsapp crash and other general problems pertaining to apps which despite repeated OS up-gradation and software updation by OP4 in early January 2015 could not be cured and therefore the same was replaced by OP1 & OP4 within two weeks of its purchase with a brand new Apple iphone 6 with same specifications as can be made from the service reports and delivery reports for the period 03.01.2015 to 09.01.2015 (annexure A to D filed with written statement of OP4). From perusal of service report dated 29.01.2015, we observe that the new handset had some heating issue and stuck on Apple logo when it was brought by the complainant to OP4 when iOS was upgraded and after passing all diagnostic tests, the subject mobile was handed over to the complainant and his feedback was “very satisfied (annexure E and F alongwith written statement of OP4)”. Thereafter, there was no complaint on record pertaining to the subject mobile phone for next and four and half months. However the dispute arose on 17.06.2015 when the subject mobile was taken by the complainant again to OP4 service center with power related issues, network and heating issue and OP4 refused to repair the subject mobile phone despite the same being under warranty alleging “unauthorized modification” as observed by its screening center which found soldering near the SIM tray card reader and SIM tray changed rendering the subject phone out of warranty due to third party interference. The onus to prove the same lied squarely with OP4 and to discharge the same, OP4 placed on record the photographs of the subject mobile phone for highlighting unauthorized modification i.e. soldering and SIM tray changed. To buttress its defence OP4 in hearing held on 13.03.2019 filed affidavit of Dheeraj Kumar, Service Engineer of OP4 deposing that the subject handset was sent to the screening center of Apple India Pvt. Ltd. which found unauthorized modification and soldering in the handset and therefore declined service under warranty and also deposed of having checked the subject handset and found soldering near SIM tray card tray and SIM tray changed. Further OP4 by way of laptop exhibition before this Forum showed images of soldering done on the subject mobile phone and compared a non-soldered – untampered mobile of the same model  iphone 6 for comparative purpose to prove its allegation. OP4 further placed on record the photographs of the soldered portion of the subject mobile phone alongwith accompanied affidavit of its Service Engineer.
12. As regards OP2 and OP3, OP2 is a non-existent entity and OP3 was the seller of the erstwhile mobile which was replaced with a new one by OP1 & OP4 on 09.01.2015 and therefore no case is made out against OP2 & OP3 notwithstanding that they are alreadyex-parte. The moot question for adjudication is whether OP1 & OP4 were deficient in service for refusing to repair the subject mobile phone. On keen examination of the subject mobile phone in physical form as well as zoom images of the same on the laptop, it can be clearly ascertained that there is evidence of soldering near its SIM tray card reader and the handset has been tampered with which when compared with an un-tampered and unsoldered handset of the same specification is even more evident.The Hon'ble National Commission in MotiLal&Anr. Vs TATA Engineering Locomotive Co. Ltd and Ors III (2016) CPJ 578 (NC) and Kanchanamani Devi (dead) through LRS and OrsVs TATA Motor Ltd. IV (2017) CPJ 614 (NC) had dismissed the complaints alleging manufacturing defect in the vehicle in cases where unauthorized modification and additions / alterations were made in the vehicles causing damage to its components viz chassis crack on the basis of affidavit of a technical expert and the complainant having failed to produced his best evidence to counter the same. The Hon'ble National Commission in Mahender Kumar Vs Hero Honda Motor Ltd. I (2017) CPJ 333 (NC) held in a case where manufacturing defect alleged in a vehicle of battery getting discharged and having been replaced twice, on the basis of one of the job cards where it was recorded that the complainant had got the outside mediator buzzer installed on the motor cycle and was advised to remove the same since the drainage of battery was because of faulty wiring of mediator buzzer  that, in absence of no expert evidence on record placed by complainant to indicate that motor cycle was having some manufacturing defect leading to battery drain out and for installation of mediator buzzer, the complainant has failed to establish any manufacturing defect therein and therefore dismissed the revision Petition against Haryana SCDRC order which has set aside the order of District Forum allowing the complaint.
13.  Having exhaustively dealt with the issue in hand in the light of legal discourse / settled proposition of law in the judgments afore-cited, we have arrived at a two-fold conclusion:

Firstly,the complainant failed to prove any manufacturing defect in the subject mobile phone in question as the complaint is vague, allegation therein unsubstantiated / uncorroborated and not supported by any report of a technical expert for which no application or permission was sought by the complainant under section 13 (1)(c) of CPA.

Secondly, OP4 has led conclusive evidence of technical expert by way of technical examination of the subject mobile phone before this Forum on the laptop and has filed photographs of the soldered SIM tray card reader and replaced SIM tray and therefore discharged its liability to prove the allegation leveled and to justify its refusal to repair the subject mobile phone when the same was brought by the complainant on 17.06.2015 to its service center. Therefore, no deficiency of service can be made out either against OP1 since it had already replaced the earlier defective mobile phone with a new one in less than two weeks of its purchase or against OP4 for having refused to repair a tampered / soldered mobile phone which was suffering from unauthorized modification by a third party got done by the complainant most likely between February 2015 to May 2015 before the same was brought by complainant to OP4 in mid June 2015.

14. We therefore dismiss the present complaint as devoid of merits as no cause of action has arisen against any of the OPs. No order as to cost. Let a copy of this order be sent to each party free of cost as per Regulation 21 (1) of the Consumer Protection Regulations, 2005.
15.   File be consigned to record room.
16.   Announced on  23.10.2020

 

(ArunKumar Arya) President(Addl. Charge)

(Sonica Mehrotra) Member