| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 237 of 26-10-2021 Decided on : 16-03-2023 Kunal Dhamija aged about 17.3/4 years, minor S/o Manjit Kumar Dhamija Advocate, R/o H.No. 289, Sikh Mohalla, Gidderbaha, Distt. Sri Muktsar Sahib through his father and natural guardian Manjit Kumar Dhamija, Advocate. ........Complainant Versus M/s M.V.S. Mobile, Mobile Shop No.7, Subhash Market, Near Water Tank, Bathinda, through its Prop. B-2X, SCF 23 Ground floor, Model Town, Phase -2, Part -2 Urban Estate, Bathinda, Punjab. Through its authorized signatory. Apple India Pvt. Ltd., UB City, 19th Floor, Concord Tower C, Vittal Mallya Road, Bengluru 560 001.
.......Opposite parties
Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member. Present For the complainant : Sh. Pardeep Sharma, Advocate For opposite parties : Opposite party No.1 ex-parte. Sh. B.L. Sachdeva, for opposite parties No.2 &3. ORDER Lalit Mohan Dogra, President:- The complainant Kunal Dhamija (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') through his father and natural guardian Manjit Kumar Dhamija, before this Commission against M/s M.V.S. Mobile Shop and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he purchased one mobile handset make Apple i-phone 7 Plus 32 GB bearing IMEI No. 353779081672802 on 29.5.2020 from opposite party No.1 vide Invoice No. GST No.103 for a sum of Rs.37,900/-. At the time of purchase of the aforesaid mobile handset, the complainant was provided one year full guarantee on behalf of the company. The opposite party No. 3 is manufacturer of the said mobile handset and opposite party No.2 is the authorized service centre of opposite party No. 3. At the time of purchase of the handset, the complainant was assured that the mobile handset is of best quality and there is no complaint from any corner regarding its quality. The complainant was assured that the company will provide best services in case of any problem in the functioning of the mobile handset. It is alleged that bonafidely believing assurance of opposite party No.1, complainant purchased said mobile handset and started using the same for personal use but it did not prove to be of good quality rather started creating problem in functioning. From the very beginning screen, network was faulty and with the passage of time, the problems in the functioning of the said mobile handset increased. The handset used to hang and the touch of the handset, display, USB, Speaker and Airphone etc. used to stop functioning and then the complainant was forced to switch off the mobile and restart it and the said process was being repeated time and again almost daily. It is alleged that the complainant alongwith his father visited the shop of opposite party No.1 and complained about the defects in the handset. The opposite party No.1 asked the complainant and his father to approach opposite party No. 2. It is also alleged that complainant visited the office of opposite party No.2 on 16.4.2021 i.e. within the Guarantee period of one year and showed the aforesaid mobile handset. After checking the handset, the authorized representative of opposite party No. 2 also confirmed that USB Dock, Camera, Speaker, Display, Airport/Wifi, Bluetooth, Adaptor, Touch screen were not functioning but in the Job Card, the authorized representative of opposite party No. 2 wrongly mentioned that the handset is not within the warranty period and for checking the mobile handset, the opposite party No. 2 charged Rs.1600/- from the complainant although the handset was within the guarantee/warranty period. The complainant alleged that since 16.4.2021, the said mobile handset is lying with opposite party No. 2. The complainant alongwith his father repeatedly visited the office of opposite party No.2 and enquired about the aforesaid handset but the opposite party No.2 kept on putting the matter off under one or the other false pretext. Now the opposite parties are demanding Rs.22,000/- from the complainant for repairing the handset although complainant is not liable to pay any amount rather the opposite parties are bound to repair the handset free of cost as the same is well within the guarantee period since the date of depositing the handset with the opposite party No. 2. It is further alleged that as there is inherent manufacturing defect in the handset due to which handset is not functioning which itself is clear from the Job Sheet and as such the complainant requested the opposite parties to replace the said handset with new one but the opposite parties have failed to replace the handset rather they are adamant to repair the same for which they are demanding Rs.22,000/- approx. and asked the complainant that if the complainant is not ready to pay the said amount, then the handset can be taken back as it is. Due to the said act on part of the opposite parties, the complainant is suffering from great mental tension, agony, botheration for which he claims compensation to the tune of Rs. 50,000/-. Registered A.D. Notice of complaint was sent to the opposite parties. Despite service of notice, none appeared on behalf of opposite party No. 1, as such, exparte proceedings were taken against it. Upon notice, the opposite parties No. 2 & 3 put an appearance through counsel and contested the complaint by filing written reply raising preliminary objections that the contentions and averments made by the complainant in the instant complaint are blatantly false, vexatious, devoid of any merits and made with the malafide intention. The complainant with dishonest intention seeks undue benefits and unjust enrichment by making blatantly false and unsubstantiated claims against opposite party No. 3. The complainant is guilty of materially concealing and suppressing material facts and has approached this Commission with unclean hands. The instant complaint is nothing but an absolute abuse of the due process of law. It has been pleaded that complainant had purchased an iPhone 7Plus 32 GB bearing IMEI No. 35377908164544 on 29-05-2020 from opposite party No. 1. The complainant alleged that he had some problem regarding display receiver sound not working on with his device. He approached Apple Authorised Service Provider (AASP) i.e., opposite party No.2 on 16-04-2021. The opposite party No.2 physically checked his device for the said issue and found that the screen was damaged and it was mentioned in the condition of the equipment column of the Service Report. The damage rendered the iPhone out of warranty. The complainant was informed about the said damage and was also informed that his device was out of warranty, he will have to pay for the service charges for checking the device for its alleged issues, which the complainant agreed and paid. The opposite party No.2 after checking the device informed the complainant that he would have to pay Rs.22,000/- for getting the device repaired, as it was damaged by him. The complainant had violated the terms and conditions of the warranty, hence the free repair or replacement of the said mobile was declined by opposite party No.2 and the complainant was supposed to pay for the repair. Despite being aware of the same, complainant filed this complaint. He has deliberately refused to collect the device back from opposite party No.2, hence the complaint is not maintainable. The opposite party No. 3 has mentioned an extract of the warranty which reads as under :- “Your Apple branded or Beats-branded hardware product ("Product") is warranted against defects in materials and workmanship for a period of ONE (1) YEAR from the date of original retail purchase ("Warranty Period") when used in accordance with Apple's user manuals (refer to www.apple.com/support/country). Under this warranty, you will be able to direct your claims to Apple even, in situations where you purchased the Apple Product from a third party. If a defect arises during the Warranty Period, Apple, at its option will (1) repair the Product at no charge using new parts or parts that are equivalent to new in performance and reliability, (2) exchange the Product with a product with equivalent functionality formed from new and/or previously used parts that are equivalent to new in performance and reliability or with your consent, a product that is at least functionally equivalent to the product it replaces, or (3) refund the original purchase price. This warranty excludes normal depletion of consumable parts such as batteries unless failure has occurred due to a defect in materials or workmanship and, damage resulting from abuse, accident, modifications, unauthorized repairs or other causes that are not defects in materials and workmanship. This Warranty does not apply: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials, or workmanship; (b) to 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; (c) to damage caused by use with a third party component or product that does not meet the Apple Product's specifications (Apple Product specifications are available at www.apple.com under the technical specifications for each product and also available in stores); (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause; (e) to damage caused by operating the Apple Product outside Apple's published guidelines; f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Apple or an Apple Authorized Service Provider ("AASP"); (g) to an Apple Product that has been modified to alter functionality or capability without the written permission of Apple; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the Apple Product; (i) if and serial number has been removed or defaced from the Apple Product; or (j) if Apple receives information from relevant public authorities that the product has been stolen or if you are unable to deactivate passcode-enabled or other security measures designed to prevent unauthorized access to the Apple Product, and you cannot prove in any way that you are the authorized user of the product (eg. by presenting proof of purchase). A perusal of the extract of the warranty above clearly shows that the manner in which the warranty is applicable. That the complainant should understand the applicability of the Consumer Protection Act. The complainant has failed to establish his complainant nor has he provided any iota of evidence to support his claim. The main ingredients of consumer complaint are not established for his complaint to be entertained. It has been pleaded that complainant is making an attempt to confuse this Commission to make out a false and vexatious case against the opposite party No.3, where none exists. The complainant had failed to establish his stand and has filed this complaint by ignoring both facts and Law. The opposite party No. 3 has pleaded that liability of a manufacturer arises only and only when there is inherent defect in the product. The manufacturer cannot be made liable until it is proved by adducing expert evidence that there was any manufacturing defect and the present case is not related to any manufacturing defect with the farthest stretch of imagination. On merits, the opposite parties No. 2 &3 have pleaded that warranty will be applicable for a period of one year from the date of purchase, as long as it does not violate the terms and conditions of the warranty. In the present case, the complainant has damaged his device and rendered it out of warranty. The opposite parties have admitted that complainant visited opposite party No. 2 on 16-4-2021 but denied the averment of the complainant that representative of opposite party No. 2 confirmed that the USB dock, camera, speaker, display, Airport/Wifi, Adaptor, touch screen were not working. It has been pleaded that in the “Problem reported by customer” of the Service Report, the complainant has admitted screen damaged. The device at the time being handed over had screen damage, which is evident from the service report . The complainant had signed on the service report acknowledging the same. The opposite parties have admitted that they charged Rs. 1600/- for checking the device. The opposite parties have also admitted that the said device is still with opposite party No. 2 since 16-4-2021. The opposite parties have pleaded that as the device is out of warranty, the replacement or repair will cost Rs. 22,000/-. After controverting all other averments of the complainant, the opposite parties No. 2 & 3 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 19.10.2021 (Ex. C-1) and the documents (Ex.C-2 to Ex.C-5). In order to rebut the evidence of complainant, opposite parties No. 2 & 3 tendered into evidence affidavit of Priyesh Poovanna dated 17.12.2021 (Ex. OP-3/1) and the documents (Ex. OP-2/2 & Ex. OP-2/3). Learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. The learned counsel for the complainant has placed on record bill Ex. C-2 which is dated 29-5-2020 and allegation of the complainant is that mobile hand set developed problems within warranty period is duly proved from the Service Report Ex. C-3 which is dated 16-4-2021. Therefore, it is proved that said mobile hand set developed problem, as mentioned in the complaint, within warranty period and failure on the part of the opposite parties to have offered to repair the said mobile hand set free of cost and to replace the same being within warranty, amounts to deficiency in service on the part of the opposite parties. Accordingly, present complaint is allowed with Rs. 2,000/- as cost and compensation. The opposite parties are directed the replace mobile hand set in question of the complainant with a new mobile hand set, within 45 days from the date of receipt of copy of this order failing which the opposite parties shall refund the amount of Rs. 37,900/- to complainant alongwith interest @ 9% p.a. w.e.f. 29-5-2020 till realization. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 16-03-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
| |
