Haryana

Ambala

CC/241/2019

Manoj Kumar - Complainant(s)

Versus

M/s Shreyash Retail Private Ltd - Opp.Party(s)

Pankaj Kumar

19 Jul 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :     241 of 2019

                                                          Date of Institution           :     01.08.2019

                                                          Date of decision     :     19.07.2022.

         

Manoj Kumar son of Shri Gorang Pradhan C/O Sanjeev Saini Basant Vihar, Near Atri Public School, Lalru District Mohali (Pb.).

                                                                             ……. Complainant.

                                      Versus

1.       M/s Shreyash Retail Private Limited, A-285, Main Bhisham Pitamaha Marg, Defence Colony, (Ist Floor, 2^nd Landing) New Delhi-110024.

2.       Apple India Pvt. Ltd., 19^th Floor, Concorde Tower UB City No.24 Vittal Mallya Road, Bangalore.

3.       Global Service India Pvt. Ltd., Shop No.12 Ist Floor, Galaxy Mall, Sector-7, Ambala City.

 

                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Pankaj Kumar, Advocate, counsel for the complainant.

OPs No.1 & 3 already ex parte.

Shri Rajiv Sachdeva, Advocate, counsel for the OP No.2.

 

Order:        Shri Vinod Kumar Sharma, Member.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To replace the handset with new one.  
2. To pay the amount already paid alongwith interest @ 18% per annum from the date of payment till its realisation.
3. To pay Rs.50,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
4. To pay Rs.20,000/- as litigation expenses.
382.  

Grant any other relief which this Hon’ble Commission may deem fit.                            

2.                Brief facts of the case are that complainant placed order of one Handset/WA76138/Apple on 04.11.2018 with OP No.1, which was dispatched on 04.11.2018, for an amount of Rs.22,499/-, vide Invoice No.FAAXNJ1901504496 and the same was received by him on 06.11.2018. The said handset properly work for first six months and thereafter started giving problem of sound and also became close at the time of conversation. Complainant contacted the OP No.3 several times, who told him that the set has been got repaired from some mechanic, but he assured that when the said set is within guarantee period the question of getting the same checked from other agency/mechanic does not arise and thereafter told that there is an inherent defect and the same cannot be rectified. The mobile set was within the warranty and the OPs failed to rectify its defect. This way, the OPs have committed deficiency in service. Hence, the present complaint.

3.                Upon notice, none appeared on behalf of the OPs No.1 & 3 before this Commission, therefore, they were proceeded against ex-parte vide order dated 25.09.2019.

4.                Upon notice, OP No.2 appeared and filed written version, raised preliminary objections with regard to maintainability and suppressed the material facts etc.  On merits, it is stated that complainant purchased the said iphone 6S bearing Serial No.FYDX606DHLW on 06.11.2018 for the cost of Rs.22,499/-. Complainant approached the OP No.3, an authorized service provider of OP No.2 on 09.07.2019 for the issue that the complainant is unable to turn on the phone. OP No.3 diagnosed the device and for further analysis sent to repair centre, where it is found that the device of the complainant is tampered. As per the warranty clause the apple device can only be repaired at AASP and not by any other person. It is clear from the examination at repair centre that there is tampering of the device due to which the device is not powering on. Op No.3 returned the said device to the complainant as per the terms of the warranty was violated. Complainant never approached OP No.3 thereafter. OP No.2 is been prompt in providing service through its authorized service provider whenever the complainant had visited them and there is no question of causing deficiency in service on the part of the OP No.2. OP No.2 has not caused any sort of difficulty or loss to the complainant. For the violation of the warranty terms by the complainant OP No.3 cannot be held responsible. It is further stated that OP No.2 had discovered that the device has been tampered which resulted into third party unauthorized modification. Complainant has breached the warranty by getting his device repaired by the third party who is not the authorized service provider of the OP no.2 and when the device could not be repaired through a third party then the complainant approached OP No.3. It is pertinent to mention here that complainant has violated the terms and conditions of the warranty provision issued by the OP No.2. Rest of the allegations levelled by the complainant were denied and prayer has been made for dismissal of the present complaint filed by the complainant against it.

5.                Learned counsel for the complainant tendered affidavit of complainant as Annexure C-A along with documents Annexure C-1 to C-3 and closed the evidence of the complainant. On the other hand, learned counsel for the OP No.2 tendered affidavit of Shri Priyesh Poovanna, son of U K Nanaiah, Aged Major, Country Legal Counsel, Apple India Private Limited, 19^th Floor, Concorde Tower C, UB City, No.24, Vittal Mallya Road, Bengaluru-560001 as Annexure OP2/A alongwith documents Annexure OP2/1 to OP2/4 and closed the evidence on behalf of OP No.2.

6.                We have heard the learned counsel for the complainant, learned counsel for the OP No.2 and have also gone through the record very carefully.

7.                The learned counsel for the complainant has submitted that the mobile in question was placed order on 04.11.2018, with OP No.1, which was dispatched on 06.11.2018. The mobile in question started giving problem of sound and also close at the time of conversation.  He further argued that the mobile was sent to OP No.3 several times, but its defect could not be rectified.

8.                 On the other hand, the learned counsel for the OP No.2 has submitted that complainant approached the OP No.3, an authorized service provider of OP No.2 on 09.07.2019 for the issue that he is unable to turn on the phone. OP No.3 diagnosed the device and for further analysis sent to repair centre, where it is found that the device of the complainant is tampered. As per the warranty clause the apple device can only be repaired at AASP and not by any other person. It is clear from the examination at repair centre that there is tampering of the device due to which the device is not powering on. Op No.3 returned the said device to the complainant as he violated provision of terms and conditions of warranty.

9.                It is not disputed that the complainant had purchased a Apple iphone 6s (Rose Gold, 32GB) bearing IMEI/serial No.355306080091566 dated 04.11.2018, Annexure C-1, for a sum of Rs.22,499/- from OP No.1, with one year warranty.  The plea of the OP No.2 is that the device has been tampered one which resulted into third party unauthorized modification. Complainant has breached the warranty by getting his device repaired by the third party who is not the authorized service provider of the OP no.2 and when the device could not be repaired through a third party then the complainant approached OP No.3. This contention of the OP No.2 is not tenable in view of the report of expert dated 10.12.2021, in which it has been specifically established that the device was not repaired by third party. Thus the version of the complainant regarding the defect in the mobile in question has been duly proved. From the above mentioned facts and circumstances, it is clearly established that the mobile in question became defective within warranty period and the OP No.2 has failed to redress the grievance of the complainant, as such, we have no hesitate to conclude that the OP No.2, is found deficient in providing service to the complainant and Op No.2 is liable to replace the mobile in question with new one of the same model and also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

10.              So far as the complaint filed against OPs No.1 and 3 is concerned. It may be stated here that neither any specific allegation has been levelled against OPs No.1 & 3 nor proved. As such, the complaint filed against the OPs No.1 & 3, is liable to be dismissed.

11.              In view of the aforesaid discussion, we hereby dismiss the present complaint against OPs No.1 and 3 and allow the same against OP No.2 and direct it in the following manner:-.

1. To replace the defective mobile in question with the new one of the same model, as purchased by the complainant. If OP No.2 is not in position to replace the mobile in question of the same model, then refund the amount of Rs.22,499/-, to the complainant.
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OP No.2 is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 19.07.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President