Punjab

Ludhiana

CC/21/288

Satwinder Singh - Complainant(s)

Versus

S.K.Enterprises - Opp.Party(s)

LDavinder Singh Adv

04 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:288 dated 01.06.2021.                                                         Date of decision: 04.05.2023.

 

Satwinder Singh son of S. Gurbachan Singh, resident of House No.2200, Phase-I, Urban Estate, Dugri, Basant Avenue, Ludhiana-141013.                                                                                                            ..…Complainant

                                                Versus

1. S.K. Enterprises (Seller) C/o. SCF-1, Phase-1 Market, Dugri, Ludhiana through its Proprietor/Partner/Directors
2. F1-Info Solution and Services Pvt. Ltd., (Authorized Service Center) 259/1, BXIX Ground Floor, Batra Palace, Ludhiana-Ferozepur State Highway, Opp. Firoz Gandhi Market, Ludhiana-141002 through its Proprietor/Partner/Directors.  
3. Apple India Pvt. Ltd., 19^th Floor, Concorde, Tower C, UB City No.24, Vittal Malya Road, Bangaore-560001 through its Proprietor/Partner/Directors.

…..Opposite parties 

Complaint Under section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Jaswinder Singh Sehgal, Advocate.

For OP1                         :         Exparte.

For OP2                         :         Sh. J.D. Singh Ahuja, Advocate.

For OP3                         :         Sh. Ashok Kumar, Advocate.

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that on 26.02.2021, the complainant purchased Iphone 11 128 GB bearing serial No.DX3DXCSJN73F, IMEI ano.355900705124297 vide invoice No.20-21/SKRT-1157 for an amount of Rs.59,900/- with a warranty period of one year. The authorized dealer told about the quality of the product by stating that in case any defect arises then the company’s service enter at Ludhiana will cater to the needs, if any, of the customer. The complainant stated that he has been using the said Iphone since 26.02.2021 and after using the same for more than one month, he noticed that the bottom mic of the mobile was not working properly due to certain defect. The complainant approached opposite party No.1 and intimated about the defect in the mobile and for rectifying the same. Opposite party No.1 advised him to approach opposite party No.2 as the same is the authorized service center of opposite party No.3 Apple India Private Limited. The complainant further stated that on 22.04.2021, he approached opposite party No.2 and handed over his mobile phone for fixing the defect who gave him a receipt note i.e. job sheet bearing No.JLUD2104222605433 dated 22.04.2021. On the very next day, after handing over the mobile to opposite party No.2 for fixing the defect, the complainant met their dealing person who to that they will be sending the mobile for the required repair to their head office at Bangalore and it might take another 15 days to receive back the mobile. However, at the time of handing over the mobile for repair to opposite party No.2, the dealing person did not say even a single word about the phone or the phone has been tempered or opened by some unauthorized person. The complainant further stated that after 15 days thereafter, on 08-09 May 2021, he again approached opposite party No.2 to take back the delivery of rectified mobile phone, the dealing person told him that his mobile has been received back from Bangalore head office with remarks that though the mobile is under warranty, yet it cannot be repaired since it was tampered or modified unauthorizedly and refused to repair the mobile. The reply of opposite party No.3 conveyed through opposite party No.2 was deliberate to avoid the liability to repair the phone and after more than 15 days belies their contention that the phone is tampered. According to the complainant opposite party No.2 had incompetent technical staff at local service center who mishandled with the mobile and then send it to their service center at Bangalore without any written intimation to him. The complainant was shocked to hear from opposite party No.2 that opposite party No.3 has refused to repair his mobile phone with remarks “The reason your product is not working is because of unauthorized modifications that were made to it. Our warranty doesn’t cover issues caused by unauthorized modifications.” Opposite party No.2 and 3 had made false reply that the mobile has been tampered or repaired/opened by unauthorized person which amounts to unfair trade practice on the part of opposite party No.2 and 3 in order to avoid their liability to repair the product during the warranty period. The complainant further stated that it is beyond contemplation that a person buying such a costly mobile and finding some defect into it, would go to any unauthorized repair shop/center that too within warranty period. According to the complainant, refusal of opposite partyNo.2 and 3 to repair the mobile amounts to deficiency in service and unfair trade practice which has caused loss and injury to the complainant. On 20.05.2021, the complainant sent email to opposite parties but no reply has been received from the opposite parties. As per the complainant, the mobile phone is still lying with opposite party No.2 since 22.04.2021. In the end, the complainant made a prayer to direct the opposite parties to repair/replace his mobile phone or to refund the price paid by him at the time of its purchase. The complainant further prayed for grant of compensation of Rs.90,000/- on account of mental agony etc.

2.                Notice was sent to opposite party No.1 through registered post on 25.06.2021 but none turned up for opposite party No.1 despite service of notice and as such, opposite party No.1 was proceeded against exparte vide order dated 21.09.2021.

3.                Upon notice, opposite party No.2 filed written statement and assailed the complaint by taking preliminary objection on the ground of maintainability, there is no deficiency in service on its part, lack of cause of action. According to opposite party No.2, the complainant himself is a wrongdoer as he himself made unauthorized modifications in the product due to which the complainant cannot claim manufacturing warranty on the product and is now trying to extort money through illegal means from opposite party No.2. F1 Info helps households deal with their electronics and appliances related problems by offering cost effective, reliable and quick solutions and that makes F1 Info the preferred trouble shooting partner for over 1 million homes. Opposite party No.2 stated that it is a company engaged, among others, in providing one stop service point for all electronics, electrical and IT products. Further it provides after sales support to major brands/online portal/Large Retail store, like installation, repair services etc. during Warranty. Opposite party NO.2 further stated that it only acts as an independent third party service provider who provides after sale services. It does not manufacture or se any product on its own or provides any kind of warranty or assurance to anyone. Complainant does not have any privity of contract with opposite party No.2 as he had purchased the product from opposite party No.1 and opposite party No.2 had no roe to pay in entire transaction. Opposite party No.2 further stated that when the complainant brought his alleged defected product to opposite party No.2, it duly informed the complainant that his product will be sent to the manufacturer i.e. opposite party No.3 as the product was under manufacturing warranty. The manufacturer has informed opposite party No.2 that the product contains unauthorized modifications and the same is not covered under manufacturing warranty and as such, the product cannot be repaired by the manufacturer. Opposite party No.2 duly intimation the same to the complainant.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                Opposite party No.3 filed separate written statement and by taking preliminary objections assailed the complaint on the ground of suppression of material facts; the complaint being an abuse of process of law; the complaint being incorrect, vexations and misleading etc.

                   In preliminary submissions, opposite party No.3 produced the extract of warranty, which is reproduced as under:-

“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 any 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).”

According to opposite party No.3, the extract of the warranty clearly shows that the iPhone will be rendered out of warranty if it is damaged. In the present case the complainant has used the iPhone negligently and damaged it, hence it cannot be serviced/ replaced under warranty. The complainant had purchased an iPhone 11 bearing Serial number DX3DXCSJN73F from opposite party No.1 on 26.02.2021. The complainant alleged that his iPhone 11 had some issues and he then approached the Authorized Service Provider (AASP) of opposite party No.3 i.e. opposite party No. 2 who then took in the said mobile for inspection and sent it to the centralised Repair Center (RC) of opposite party No.3. The RC upon inspecting the said device found debris in and around the speaker and it was diagnosed that the device was tampered and had unauthorised modifications. The complainant was informed about the condition of the device and was informed that he cannot receive service/ repair or replacement under warranty as the said mobile was damaged and in violation of the warranty conditions. The complainant refused to accept the said diagnosis and he had filed the present complaint. Opposite party No.3 further stated that the complainant is also guilty of materially concealing and suppressing material facts which is evident from the fact that he himself damaged his iPhone and he is solely attributable to his own actions which are in breach of the terms of the Apple Warranty. The damage to the complainant's device cannot be attributed to opposite party No.3.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of technical specifications of iPhone 11, Ex. C2 is the copy of invoice dated 26.02.2021, Ex. C3 is the copy of service and support coverage of iPhone 11, Ex. C4 is the copy of job sheet dated 22.04.2021, Ex. C5 is the copy of product service summary, Ex. C6 is the copy of email dated 20.05.2021, Ex. C7 is the copy of  Aadhar card of the complainant and closed the evidence. 

5.                On the other hand, the counsel for opposite party No.2 tendered affidavit Ex. R2/A of Ms. Sheeta Tiwari, authorized signatory of opposite party No.2 and closed the evidence.

                   The counsel for opposite party No.3 tendered affidavit Ex. RA/3 of Sh. Sandeep Karmaker, Contractors Manager/authorized signatory of opposite party No.3 along with documents i.e. Ex. R1/3 is the copy of letter of authorization,  Ex. R2/3 is the copy of warranty and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements, along with affidavits and documents produced on record by the parties.

7.                            It is not disputed that the complainant purchased the iPhone 11 mobile vide invoice Ex.C2 dated 26.02.2021. It has been claimed that the iphone in question went out of order within a period of less than one month and it was submitted with the OP2, the authorized service centre of OP3 for the necessary repairs. In the job sheet Ex.C4 dated 22.04.2021 issued by the OP2, it is mentioned that the Bottom mic not working…normal tear and wear on device.  It is further mentioned in the job sheet Ex.C4 that AASP sends the device to the repair centre for inspection and based on the RC inspection decision only the device will be eligible for service support. Moreover, in the column Problem observed it is mentioned that the device having mic not working issue while calling distorted audio came from mic. In the column take Action it is mentioned tampered from RC. Moreover, as per Product Service Summary Ex. C5 of AppleCare Service, it is mentioned that our technicians carefully inspected the product you sent to us. They determined that the product is ineligible for service, so we’re returning it to you now. We apologize for any inconvenience. It has been further mentioned in Ex. C5 that the reason your product isn’t working is because of unauthorized modifications that were made to it. Our warranty doesn’t cover issues caused by unauthorized modifications.

From the product service summary Ex.C5 as well as the stand taken by opposite party 3 in the written statement, the defense raised by opposite party No.3 is that the iPhone in question was found to have been subjected to unauthorized modification, meaning thereby that it was tempered by some unauthorized repair shop. However, in order to substantiate this claim, opposite party No.3 has not furnished any concrete or worthwhile evidence. No technician or service engineer has been examined and nor any such report made by some expert technician or service engineer has been placed on record by opposite party No.3 to prove that the iphone in question was got repaired or tempered with from some unauthorized mechanic or the service centre. Besides, the fact remain that the iphone went out of order within a period of just one month from its purchase. As per invoice Ex. C2, the complainant purchased the mobile phone in question for Rs.59,900/- on 26.02.2021 and it was handed over for repair to opposite party No.2 on 22.04.2021 as per Ex. C4. In the absence of any concrete evidence that the iphone was tempered with or got repaired from some unauthorized agent, opposite party No.1 and 3 cannot be escape from their liability for supplying the defective product which could not last even for a month and went out of order beyond repairs so much so that even the service centre of opposite party No.3 could not repair it or restore it to a working condition.

8.                In C.N. Ananthram Vs M/s. Fiat India Ltd. and others 2010 (4) CPJ 56 passed by the Hon’ble Supreme Court of India whereby the complainant sought replacement or full refund of the amount along with interest for “defect in the engine of the vehicle”. The Hon’ble Supreme Court has held that the replacement of the defective engine with new engine would suffice. Further, in Tata Motors Ltd. Vs Sharad and others in 2016 (SCC) NCDRC 1600 whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle purchased by the complainant suffered certain defects and also used for considerable kilometers, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that a new vehicle cannot be replaced and defective part of old vehicle has to be replaced.  In the given set of facts and circumstances, it would be just and appropriate if opposite party No.1 and 3 are directed to repair the iPhone in question free of costs within 30 days from the date of receipt of copy of order and also to pay composite costs of Rs.5000/- to the complainant.

9.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 and 3 to repair the iPhone in question comprehensively and to make the same fully functional free of costs within 30 days from the date of receipt of copy of order. Opposite party No.1 and 3 shall further pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant.  Liability of opposite party No.1 and 3 is held joint and several. Compliance of this order be made within 30 days from the date of receipt of copy of the orders. However, the complaint as against opposite party No.2 is dismissed. Copies of order be supplied to parties free of costs as per rules.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (SanjeevBatra) Member                        Member                                       President         

 

Announced in Open Commission.

Dated:04.05.2023.

Gobind Ram.

 

 

Satwinder Singh Vs S.K. Enterprises                                        CC/21/288

Present:       Sh. Jaswinder Singh Sehgal, Advocate for the complainant.

                   OP1 exparte.

                   Sh. J.D. Singh Ahuja, Advocate for the OP2.

                   Sh. Ashok Kumar, Advocate for OP3.

                  

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 and 3 to repair the iPhone in question comprehensively and to make the same fully functional free of costs within 30 days from the date of receipt of copy of order. Opposite party No.1 and 3 shall further pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant.  Liability of opposite party No.1 and 3 is held joint and several. Compliance of this order be made within 30 days from the date of receipt of copy of the orders. However, the complaint as against opposite party No.2 is dismissed. Copies of order be supplied to parties free of costs as per rules.

 

(Monika Bhagat)          (Jaswinder Singh)             (SanjeevBatra)

Member                         Member                            President

 

Announced in Open Commission.

Dated:04.05.2023.

Gobind Ram.