BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.253 of 2016
Date of Instt. 14.06.2016
Date of Decision:24.10.2017
Kunwar Sood, aged 29 years, son of Sh. S.C. Sood, resident of 42, Shaheed Udham Singh Nagar, Jalandhar.
..........Complainant
Versus
1. M/s Apple India Pvt. Ltd. 19th Floor, Concorde Tower 'C' UB City, No.24, Vittal Mallya Road, Banglore 560001 Karnatka, through its Service Center, M/s B2X Service Sollutions India Pvt. Ltd, Ground Floor, 182-R, Model Town 144003, Jalandhar.
2. M/s B2X Services Sollutions India Pvt. Ltd., Ground Floor, 182-R, Model Town 144003, Jalandhar through its Manager.
3. M/s Chadha Mobile House Pvt. Ltd. Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar, through its Director/authorized representative.
..….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. VK Uppal, Adv Counsel for the complainant.
Sh. Aditya Jain, Adv Counsel for the OP No.1.
Sh. Umesh Ohri, Adv Counsel for the OP No.2.
OP No.3 exparte.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that the complainant has purchased an iPhone 6, vide bill dated 22.06.2015 from OP No.3. The work of the complainant is data base and requires prompt service from people, who engage the complainant for providing the legal services. The phone in dispute was purchased on 22.06.2015 and undisputedly, the same was covered within the warranty period, which was to subsist till 21.06.2016 i.e. a period of one year, since from the date of purchase. It is pertinent to mention here that at the time of purchase of phone, only the bill had been provided and no other document was signed by the complainant. Since its purchase, the complainant had been using the said iPhone 6 and this was the only phone, which was being used by the complainant. However, in the first week of June, 2016, the complainant was informed by the callers that the voice is not audible at the other end and there was fluctuation in the pitch of the voice. Accordingly, the complainant visited the OP No.2 to register the complaint and to get the problem resolved on 06.06.2016. However, on 06.06.2016 the ordeal of complainant started at the hands of the OP No.2. It appeared that the OPs had compromised with the quality of the products at the inception itself. However, the OP No.2 instead of resolving the complaint, started suggesting to the complainant that the complainant get the phone exchanged with a new iPhone, after paying Rs.25,000/- in addition. The complainant informed the OP No.2 that original purchase itself was made for Rs.44,300/- and even otherwise the complainant had always been informed that the OPs No.1 and 2 replace the phone, in case such a defect arises. That upon much insistence, the OP No.2 thereafter, admitted the phone and created a job card on 06.06.2016. The copy of said job card is attached and it is clearly reflected in the said job card that the problem which was reported was low sound found from receivers, speakers and mice modules. As far as, the condition of the iphone was concerned, it was mentioned that there are some visible dents around the corner. It was further mentioned that the OP needs to inspect the phone internally. It may be important to mention here that there was no modification or tamperness, which was found in the iPhone at the time when the job card was created. The job card was created after thorough satisfaction by the OP No.2. In the same evening, the complainant received an email at 6:15pm from the OP No.2 that the job card having ID JAL060616206327 has been cancelled as the same is not repairable. The complainant was shocked as the said mail was non speaking and did not mention any details for decline of the request. Further, herein no service report was also sent alongwith the mail on 06.06.2016.
2. That thereafter, the complainant tried to contact the OP on the telephone numbers, provided by them but there was no response whatsoever. The complainant made numerous calls on 07.06.2016, but there was no response. Eventually, on 08.06.2016, at around 11:30 hours, there was response after nine call were made at the number. The said call lasted for eight minutes and the customer executive showed her ignorance about any service report/delivery report prepared once the phone had been given on 06.06.2016. Upon repeated insistence for eight minutes, the customer executive assured that she would get a call back arranged from OP No.2. The complainant thereafter waited for the call, but there was no response from the OPs. As stated above, the complainant is a legal practitioner and has been using apple products and as such, the complainant was suffering reoccurring loss on account of nonavailability of vital data. Eventually, on the same date on 08.06.2016, the complainant had to make a distress purchase for the same phone from OP No.3 itself for an amount of Rs.37,500/-. It may be noted that the said purchase had to be made as the OPs had chosen to remain silent and some how coerce the complainant into getting the phone replaced, after paying Rs.25,000/- to the OP No.2. The complainant continued his efforts to contact the OPs as inspite of assurance at 1129 hours no call back had been arranged. Thereafter, the complainant made another call at 1717 hours on 08.06.2016 and on the said occasion, the OP No.2 again insisted that the complainant get the iPhone exchanged after paying Rs.25,000/-. The complainant insisted that at least details be provided for refusal and also the eventual report prepared be also provided. By that time, the complainant was convinced that the only intention of the OP and in particular, OP No.2 was to dupe the complainant and was to some how extort a sum of Rs.25,000/- and to further avoid replacing the iPhone within the guarantee period. On the same date, the complainant also sent a mail detailing the entire set of events. The OP No.2 upon insistence sent a mail, wherein also the OPs again did not provide the copy of report, which was prepared and allegedly declined the request on the ground that there were dents on the body. It was in meek words added in the end of the mail that the apple found unauthorized modifications in the phone. The said mail is attached. That perusal of mail, would suggest that OP again chose not to send the report and has further created reasons which are beyond the ambit of job card, which was prepared on 06.06.2016. The OP seem to have made no effort to rectify the problem or to even address it and has rather created a flimsy ground only in order to create a situation, compelling the complainant to get the phone replaced, as reflected in the last mail sent. The OP has adopted unfair trade practice as well as deficiency in service, which give arise to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the iPhone of the complainant with latest model prevalent at the time of pronouncement of final order and further OPs be directed to pay damages to the tune of Rs.50,000/- and litigation expenses to the tune of Rs.20,000/- and also pay interest @ 12% per annum on the amount of Rs.37,500/-, whereby the complainant purchased an other mobile.
3. Notice of the complaint was given to the OPs but despite service, OP No.3 did not come present and ultimately OP No.3 was proceeded against exparte, whereas OP No.1 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 principle of law. The instant complaint has been devised to mislead this Fourm. It is submitted that 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 and further submitted that the provisions and terms of the Apple Warranty specifically exclude damage of products, which is the case in the present matter and further submitted that the OP No.2, who is an authorized service provider of the OP No.1 diligently undertook efforts to diagnose the problem with the iPhone of the complainant, when the same was brought to the OP No.2 by the complainant. It is further averred that the complainant has concealed the material facts from the Forum and therefore, the complainant is not entitled for the relief claimed and further submitted that the onus to prove allegations lie on the complainant and hence the complainant may be directed to furnish and prove his allegations in relation to complaint and further submitted that the liability of the manufacturer arises only and only when there is inherent defect in the product but there is no inherent defect in the product and as such, the complainant is not entitled for the relief claimed. On merits, the purchase of the mobile phone is admitted and warranty for one year is also admitted and it is also admitted that the phone was brought before OP No.2 for repairing purpose, but the remaining allegations as made by the complainant are categorically denied and similarly, OP No.2 filed a separate written reply and took almost similar preliminary objections and also reply on merit by admitting that the iPhone was purchased by the complainant, which was having one year warranty and also admitted that the same was brought for repairing purpose but the other allegations also denied by the OP No.2 and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A alongwith some documents Ex.C1 to Ex.C8 and then closed the evidence of the complainant.
5. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith some documents Ex.OP1/1 to Ex.OP1/4 and closed the evidence of OP No.1 and then counsel for the OP No.2 tendered in evidence affidavit Ex.OP2/A alongwith some documents Ex.R1 to Ex.R5 and closed the evidence of OP No.2.
6. We have bestowed our thoughtful consideration to the submissions made by the counsel for the respective parties and also scanned the case file very minutely.
7. After considering the respective version of both the parties, we find that the purchase of the iPhone 6 by the complainant on 22.06.2015, vide invoice Ex.C2, for an amounting to Rs.44,300/- is not in dispute rather the same has been admitted by both the OPs. The question remains to be adjudicated is only whether there is any manufacturing defect in the mobile phone and the same is occurred within the warranty period, the factum in regard to warranty of one year is admitted by both the OPs, in their respective written reply. It is also established on the file from the invoice that the mobile phone was purchased on 22.06.2015 and warranty period was to subsist till 21.06.2016 and as per version of the complainant, the problem first time occurred in the mobile on 06.06.2016 and accordingly, the mobile phone was submitted with the service centre i.e. OP No.2, who issued the job sheet/service report which is available on the file Ex.C3, wherein the problem mentioned is 'Low sound from receiver, speakers and mic modules', the similar problem has been alleged by the complainant in the complaint, it is admitted fact that the service report/job sheet was issued by the mechanic after checking the mobile set and no doubt, as per the version of the OP as stated in the written reply that there is a scratches around the device and visible major dents around all the corners and screen is popped up from top and bottom end and cut on the left side, these scratches and dents have been very well mentioned in the service report Ex.C3, but it is not the case of the OP that due to that dents and scratches, there was a problem of low sound from receiver, speakers and mic modules, rather after issuing the service report Ex.C3, the OP has took a different plea by bringing on the file photographs of the mobile phone Ex.OP1/1 to Ex.OP1/3, whereby the OP tried to establish that there is an unauthorized modification in the mobile phone as well as mishandling of the mobile phone and due to that reason, the mobile phone is not repairable and these factum has been mentioned in the term and condition of the warranty, which are available on the file Ex.OP1/4, admittedly as per the term and condition of the warranty, if there is a mishandling and unauthorized modification found in the phone, then the purchaser can be debarred from taking the benefit of the warranty, but in this case, the OP has simply took a plea in their respective written reply but the factum in regard to unauthorized modification and mishandling is not proved by leading any cogent and convincing evidence, admittedly, as per principle of law, it is the duty of the complainant to stand his own leg and to prove his case independently by leading sufficient evidence and accordingly in this case, the complainant has to prove the allegations as made in the complaint that there is a manufacturing defect in the mobile and due to that reason, there is a low voice and there was fluctuation in the pitch of the voice and to prove these factum, the complainant has brought on the file service report Ex.C3, wherein the same problem has been mentioned and the said documents i.e. service report Ex.C3 is not prepared by the complainant rather the said document issued by the OP and it is not mentioned in the service report that there is any unauthorized modification and mishandling of the iPhone set, if these factum are not mentioned in the service report, then it is presume that the same has been manipulated by the OP later on just to deny the relief to the complainant.
8. Apart from above, if the mobile phone of the complainant was checked by the mechanic/service engineer of the OP as alleged by the OP in the service report Ex.C3 that the mobile phone will be checked through micro inspection and if, virtually there was any micro inspection was done by the OP, then the engineer/mechanic, who conducted the said inspection has to be examined and whose report is required to bring on the file, but no report of the expert has been brought on the file by the OP, which itself established that the plea taken by the OPs is not a correct one, rather the case of the complainant from the documents i.e. emails sent by the complainant to the OP Ex.C-4 to Ex.C-6, itself established that there was some problem in the mobile phone and due to that reason, the complainant was taking a pain for sending such emails again and again. So, from the over all circumstances, it is established that there is a some manufacturing defect in the mobile though it is occurred in the last month of the expiry of the warranty period but we can say that the problem occurred within a warranty period i.e. within a period of one year and therefore, the complainant is entitled for the relief claimed.
9. In view of the above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 and 2 are directed to replace the iPhone of the complainant of same model and same price, after getting back the old phone and further OP No.1 and 2 are directed to pay the damages to the complainant to the tune of Rs.15,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. The 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
24.10.2017 Member President
