BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 10 of 2021.
Date of Institution : 15.01.2021.
Date of Decision : 22.07.2024.
Mahender, aged 35 years son of Shri Jugal Kishor, resident of Kikkar Singh MC Wali Gali, Khatik Mohalla, Sirsa, District Sirsa, Mobile No. 86850-76327.
……Complainant.
Versus.
1. M/s Shree Satyam Mobiles, Sadar Bazar, Sirsa, District Sirsa (Haryana). M. No. 98130-46005/ 99922-55266.
2. Apple India Private Ltd., No. 24, 19th Floor Concerned Tower, C; UBCT Vittal Malya Road, Bangalore- 560001 through its authorized Signatory.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR……………………….MEMBER
SH. OM PARKASH TUTEJA………………….MEMBER
Present: Sh. Vijay Bhalla, Advocate for complainant.
Sh. H.S. Raghav, Advocate for opposite party No.1.
Sh. Abhishek Jain, Advocate for opposite party no.2.
ORDER
The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as Ops).
2. In brief, the case of complainant is that complainant has purchased a Mobile set Iphone Model-I Phone 6S Rose gold 32 GB from op no.1 for a sum of Rs.22,000/- vide bill No. 11365 dated 07.02.2020 and op no.1 has given one year warranty of the said mobile. That after about three months of purchase, the Iphone became defective and as such complainant contacted the op no.1 and made complaint in this regard and demanded for replacement or to get it repaired. It is further averred that on advice of op no.1, the complainant deposited the mobile with it and op no.1 further sent the mobile to Digicare Service, Hisar for repair which returned the set to op no.1 with the remarks “Unit returned tampered from RC centre, no eligible for service, device returned to customer.” The op no.1 then sent the set to B2X Service Solution India Pvt. Ltd., Bathinda for repair but they returned the set to the op no.1 with the remarks “Low battery life, request cannot be processed.” It is further averred that complainant visited shop of op no.1 so many times but he has been put off with one pretext or the other and till date op has not resolved the grievances of complainant and flatly refused to replace or repair the set. That a legal notice dated 07.12.2020 was also sent to the op no.1 by complainant but of no avail and complainant has suffered unnecessary harassment and mental tension. Hence, this complaint.
3. On notice, op no.1 appeared and sought various opportunities for filing written statement but did not file written statement and as such defence of op no.1 was struck of. However, thereafter op no.1 filed an application for review of the order and permitting him to file written statement and as such he was allowed to file written version subject to payment of costs of Rs.5000/- to the complainant.
4. Op no.1 filed written statement taking certain preliminary objections regarding maintainability, cause of action, suppression of true and material facts, complainant is not consumer of the ops, estoppal and that mobile hand set in question was in defect of manufacturing level i.e. company level and only the company is liable for resolving the problem of manufacturing defect if any and as the op is only the sale point of the mobile handset and there is no deficiency in service of any kind at the end of the op. If the complainant has any grievance regarding any problem in the mobile hand set then the manufacturing company of mobile has its authorized service centre where the complainant could get remove the defect and only authorized customer care centre is liable to comply the customer problems as per company term and conditions. It is further submitted that complaint is bad for mis joinder and non joinder of necessary parties. The answering op is only sale point of various mobiles companies as per companies norms and terms and conditions. The mobile companies settled a mechanism for providing better services to its valuable customers through its customer care centers, hence customer care and manufacturer are necessary parties. On merits, it is submitted that answering op is doing his business on a nominal profit and set purchased by op from its manufacturer/ distributor in a sealed and packed condition and sell out the same as he received from the distributor/ manufacturer on the nominal profit. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.1 made.
5. On being impleaded op no.2 appeared and filed written version raising certain preliminary objections. It is submitted that OP no.2 sells the iphones alongwith one year limited warranty and warranty terms are not applicable in case an iphone has been tampered with by an unauthorized third party. The warranty provided by op no.2 to its customers only covers within its coverage defects in materials and workmanship i.e. any manufacturing defect and excludes defects that have arisen due to any accidental damage caused to the product. It is further submitted that complainant is stating that the Digicare Service Centre had refused to repair the subject iphone stating that the subject iphone was tampered withy by an unauthorized service centre and that B2X Service Solution India Private Limited had refused to repair the subject iphone stating that the phone has low battery life. It is further submitted that complainant has conveniently and dishonestly not disclosed the fact that B2X Service Solution India Private Limited had refused to repair the subject iphone on the same ground, which was given by Digicare Service Centre that the subject iphone had been tampered with by a third party. Since the subject iphone was tampered with by an unauthorized third party, the same was rendered out of warranty and thus was not eligible for free of cost repair. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
6. The complainant in evidence has tendered his affidavit Ex. CW1 and documents Ex.C1 to Ex.C9.
7. On the other hand, op no.2 has tendered affidavit of Sh. Sandeep Karmakar, Contracts Manager as DW1/A and warranty policy Ex.D1.
8. it is pertinent to mention here that though op no.1 filed written statement but did not pay the said amount of costs of Rs.5000/- to the complainant despite availing various opportunities and vide order dated 21.11.2023 it was held that for non payment of Rs.5000/-, the defence of op no.1 stands automatically struck of and evidence of op no.1 was also closed due to the fact that defence of op no.1 stands struck of for non compliance of orders regarding payment of costs. As such written version filed on behalf of op no.1 cannot be read.
9. We have heard learned counsel for the parties and have gone through the case file.
10. From the tax invoice Ex.C1, it is evident that on 07.02.2020 complainant purchased one Iphone mobile for a sum of Rs.22,000/- from op no.1. According to the complainant just after about three months of purchase i.e. within one year warranty period provided to him by op no.1, the said mobile became defective and therefore he demanded replacement or repair of the mobile from op no.1 upon which op no.1 got deposited the mobile from him. The service report Ex.C4 reveals that on 15.09.2020 the mobile in question received by Digicare Services, Hisar from Satyam Mobile, Sirsa i.e. op no.1 was returned back to op no.1 with the remarks “Unit returned tampered from RC Centre. Not eligible for services. Device returned to customer”. Against the column of customer name, name of customer is mentioned as Rakesh of Satyam Mobile Sirsa meaning thereby that said Service Centre received the mobile from one employee named Rakesh of Satyam Mobile Sirsa and not from complainant and as such from the said job sheet, it is evident that unit was tampered at the shop of op no.1. Thereafter, the mobile was sent to B2X Service Solutions India Pvt. Ltd. Bathinda by op no.1 on 21.10.2020 as is evident from job sheet Ex.C6 and again the mobile was sent back by that service centre as unrepaired on the ground that unit tampered. Further Apple Care Service sent email to Rakesh of Satyam Mobgile Sirsa (Ex.C5) vide which it was informed that reason your product is not working is because of unauthorized modifications that were made to it, our warranty does not cover issues caused by unauthorized modifications. So, it is proved on record that mobile in question remained with op no.1 or above said service centers for long time and said service centers returned the mobile to op no.1 as mobile was tampered and since the mobile remained with op no.1 for long time, therefore there is every possibility that mechanic of op no.1 tried to repair the mobile and made some modifications after inserting some parts but could not repair the mobile and as such mobile was sent to above said two service centers. Although, op no.1 has averred that mobile in question was having manufacturing defect at company level and only the company is liable for resolving the problem of manufacturing defect, if any but firstly the written version of op no.1 cannot be read for above said reason of non compliance of order regarding payment of costs and secondly from the record it is proved that mobile was tampered with at the retail centre of op no.1. Since it has come on record that mobile could not be repaired by service centers due to tampering, therefore, op no.1 only for above said tampering in the mobile is liable to hand over a new mobile to the complainant after replacement.
11. In view of our above discussion, we allow the present complaint qua opposite party no.1 and direct the op no.1 to replace the mobile in question with a new one and to hand over the new mobile of same price and model to the complainant within a period of 30 days from the date of receipt of copy of this order. However, in case it is found that said model of mobile is not available, then op no.1 will pay the price of mobile i.e. Rs.22,000/- to the complainant within above said period, failing which complainant will be entitled to receive the said amount of Rs.22,000/- from op no.1 alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the op no.1 to pay a sum of Rs.5000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. However, complaint qua op no.2 i.e. manufacturer stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President
Dt. 22.07.2024. District Consumer Disputes
Redressal Commission, Sirsa.
