Sri Ranjan Ray, Ld. Member           

                      FINAL ORDER/ JUDGEMENT

This complaint was initially filed under the provision of C.P. Act, 2019 against the Opposite Party (O.P.) – 1) M/S Cariano Telecom Pvt. Ltd., 6-E, Main Street, Kamala Nagar, Delhi- 110007, Near Chota Gol Chakkar, 2) Apple India Private Limited, 19^th Floor, Concorde Tower C, UB City, No.24, Vittal Mally Road, Bangalore- 560001 and 3) Macintel Solutions, City Mall, Sevoke Road, P.O. & P.S. - Siliguri, Darjeeling, Pin Code- 734001. The O.P.-1 did not file W.V. and as per Order No. 35, dated 07/11/2019 the O.P. No.1 declared ex- parte. The O.P. No.2 and 3 contested the case by filing their W.V. separately.   

                        The case of the complainant as per his complaint is as follows-

The complainant, working with Havells India Pvt. Ltd., purchased 02 (Two) Apple iPhone 6, 16 GB and 26 (Twenty Six) Apple iPhone 6, 32 GB having invoice No. RI/ 447 from the O.P. No.1. The O.P. No.1 was the dealer and seller of the said products and other such items related to mobile phones, computers and its peripherals. At the time of unpacked the phones complainant noticed that the phone being IMEI No. 359220071783287 was not in working condition with several display and operational problems. The complainant visited the O.P. No.3, the iPhone service centre, and lodged a complaint in connection to the non functionality of the device but the phone was not repaired and it was told that the phone had to be further  diagnosed for the problems as complained vide a service report dated 28.06.2017. The complainant was further informed by the O.P. No.3 that the phone would not be covered under Apple warranty because the phone was bend which was a physical damage and the whole unit needs to be replaced which was chargeable and the complainant would have to pay the charge vide a report dated 10.07.2017. Subsequently, on 05.07.2017 the complainant intimated the issue to the O.P. No.1 and O.P. No.3 through e-mail for resolution but all in vain. In this context, the complainant argued in his complaint that the damage was not the outcome of his act but irony was that first he had to pay for the phone and even after that the O.P. No.1 and 3 were imposing further expenses for the suggested repair work for which he was neither responsible nor liable.        

                                    The prayers of the complainant are as follows: -

1. Replacement of the Cell phone or an amount equal to cost of the Cell phone be paid by the O.P.s.
2. An amount of Rs. 20,000/- (Rupees Twenty Thousand) only as a compensation for mental agony, harassment and tension payable by the O.P.s.
3. Any other order/ orders as the Honourable Bench may deem fit and proper.

List of Documents filed by the complainant:

1. Photocopy of retail Invoice, dated 16.05.2017.
2. Photocopy of Service Report, dated 20.06.2017.
3. Photocopy of Service Report, dated 10.07.2017. 
4. Photocopy of E-mail, dated 10.07.2017.
5. Photocopy of legal notice, dated 17.07.2017 along with postal receipt and tracking report.

Regarding this instant case, the O.P.-1 did not file W.V. and as per Order No. 35, dated 07/11/2019 the O.P. No.1 declared ex- parte. The 2) Apple India Private Limited, 19^th Floor, Concorde Tower C, UB City, No.24, Vittal Mally Road, Bangalore- 560001 and 3) Macintel Solutions, City Mall, Sevoke Road, P.O. & P.S. - Siliguri, Darjeeling, Pin Code- 734001who contested the case by filing their W.V. separately and as per their W.V. the case is as follows.

As per the W.V. of O.P. No.2, iPhone sold in India by them through their authorized dealers/ resellers are known for their cutting-edge technology and utmost customer satisfaction. The complainant initially purchased an iPhone 6 Space Gray 32 GB-HIN, Serial No. F6WTM0RHHXR5 and on 28.06.2017 he brought iPhone before the AASP and after inspection it was found that there was a damage, i.e., Bent Enclosure, LCD fractured (Black Patch on Top Right corner of the display and line on display were half portion of display was black). After the said inspection the O.P. No.3 duly informed the complainant that his iPhone was out of warranty service due to damage with the device which was not attributable to the O.P. No.2 but due to the action/ negligence of the complainant and the service of the said iPhone was refused by the O.P. No.3 as it was found to be damaged. As per the W.V. of O.P. No.2 the complainant had damaged the said iPhone and was trying to claim replacement under warranty violating the said provision. According to the W.V. of O.P. No.2, the clause (b) of the Warranty clearly states that the warranty is not applicable in in case of cosmetic damage including, but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship. In his W.V. the O.P. No.2 has mentioned judgment of (i) The National State Commission (M/s Tata Motors Ltd Verses Mrs. Surjit Kaur & Others), (ii) The State Consumer Forum Tamil Nadu (N.R. JayachandranVreses Ford India Limited), (iii) Hon’ble Supreme Court of India (C.N. Anantharam Verses Fiat Indi Ltd and Ors) and (iv) The State Consumer Forum, Punjab (Lagger Industries Ltd vs. Diamler Chrysker India Pvt. Ltd) in support of his defense.

List of documents filed by the O.P. No.2:-

1. Photocopy of applicable warranty provisions/ terms. (Annex.-1)
2. Photographs of complainant’s iPhone clicked by O.P. No.3 during inspection. (Annex.-R  2)

The prayer of O.P. No.2 is as follows-

1. It is humbly prayed that this Hon’ble Commission be pleased to dismiss this complaint as the present complaint has no cause of action, bears no substance and merit and deserves to be dismissed in limine.

As per the W.V. of the O.P. No.3, they were neither a manufacturer nor a seller or supplier of the alleged product. The complainant had alleged defect in the said handset/ mobile phone but did not provide or relay upon any expert opinion to substantiate his allegation of manufacturing defect which was required as per settled principle of law. As per O.P. No.3 they are only service centre who merely addresses the issues arising out of all alleged defects in the Apple mobile handsets and intimates to the manufacturer and the manufacturer looks into the matter to carry out further repair or necessary changes as per the requirement. The O.P. No.3 being a complete non entity is not authorized to replace any handset or to refund the consideration amount. It was alleged by the complainant that upon unpacking the phone, the said handset/ mobile phone was allegedly found in non functional condition with several display and operational problems and when the said handset/ mobile phone was submitted to the O.P. No.3 the said handset/ mobile phone was diagnosed with following observations, i.e., “iPhone bend, Device not come under warranty, needs to replace, whole unit on chargeable basis as per Apple policy”. In his W.V., the OP. No.3 argued that the complainant specifically alleged that the O.P. No.1 had deliberately delivered a defective phone, interalia, circumscribing the domain of his complaint itself. Moreover, there was no direct allegation/ complaint against the O.P. No.3 in the entire complaint.   

List of documents filed by the O.P. No.3:-

1. Photocopy of Service Eligibility Guideline. (Annex.- A)

The prayer of O.P. No.3 is as follows-

1. To expunge the name of O.P. No.3, since by dragging them into this litigation, the O.P. No.3 is being unnecessarily harassed.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case?  

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant entitled to get any award and relief as prayed for? If so, what extent?

All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by both parties. We are also heard arguments advanced by both the complainant and Proforma O.P. No.1,2 and 4 in full length.

It is very much clear from the evidences that the complainant resides in Siliguri of Darjeeling district and the O.P. No.3 is running his business in P.O. & P.S. - Siliguri, Dist. - Darjeeling. Thus, there is no doubt that this Commission has its territorial jurisdiction to decide this case.

Seen and perused the complaint filed by the complainant and W.V. filed by the O.P. No.2 and 3 as well as documents filed by the complainant and O.P. No.2 and 3. It is also clear that the complainant is no longer a consumer as per Section2 (i) and (ii) of Consumer Protection Act, 1986 and also as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 because as per the Retail Invoice being No. RI/ 447, dated 16.05.2017 filed by the complainant, the complainant is not the buyer of the said iPhone being IMEI No. 359220071783287. The name of HAVELS INDIA LTD., QRG TOWERS, PLOT NO- 2D, SECTOR- 126, NODIA is written in the said Retail Invoice being  No. RI/ 447, dated 16. 05. 2017 instead of the name of the complainant. Even, the complainant did not file any Authorization or any Power of Attorney in this regard to justify himself as a consumer. Hence, as per Section2 (i) and (ii) of Consumer Protection Act, 1986 and also as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 the complainant is no longer a consumer.    

 In this instant case, this Commission holds that the evidence produced by the complainant is not sufficient to prove him as a consumer as per Section2 (i) and (ii) of Consumer Protection Act, 1986 and also as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 and thus the instant case is dismissed on merit without cost.

Hence, it is

ORDERED

That the Consumer Case No. 84/2017 is dismissed on merit against the O.P.s without cost.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.