Delhi

West Delhi

CC/17/55

LAKSHAY DILAVARI - Complainant(s)

Versus

SERVICE CENTRE OF APPLE - Opp.Party(s)

21 Jul 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL COMMISSION,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   55/17

In re:-

Mr. LakshayDilavari

C/o 16/62 Subhash Nagar,

New Delhi-27                                                             ………..Complainant

VERSUS

Ms/s Apple India Pvt Ltd

19^th floor, Conforde Tower

UB City No.24, Vittalmailya Road

Banglore-560001

 

M/s Unicorn Info Solution Pvt. Ltd.

GF-43, Ground floor backside

Pacific mall, Subhash Nagar

New Delhi-110018                                                            ..........Opposite Party

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution: 25.01.2017

Judgment reserved on: 06.07.2022

Date of Decision:21.07.2022

Order by Richa Jindal(Member)

6698606.  

1. That the complainant has filed the present complaint. Brief facts presented before the Hon’ble Forum are as follows:-

1. That on 21^st December,2014, the complainant had purchased one brand new Iphone 6,16 GB, Gold Colour carrying IMEI No.-356960064595932 marketed by OP No.1 for Rs-53,500/- from one M/s Arora Communication vide Invoice No. 4975
2. That the Apple Iphone-6 Home Button abruptly stopped functioning in August, 2015 and the matter was immediately reported to OP-2, authorized Service Centre of OP-1 located at Pacific Mall, New Delhi-110018 on 5^thAugust, 2015.
   1. After confirming the problem or issue in home button they delivered a swapped phone to the complainant on August-7, 2015 and deposited the defective mobile with the OP-2, i.e. Apple Service Centre.
   2. It’s a Policy of Apple that on confirming the Hardware Issue they replace the I-phones.
3. That the swapped I-phone carrying Serial Number-C39PJWBRG5MQ was put to use on August-7, 2015. After running hardly for 5 Months the Apple I-phone 6 once again stopped working and therefore taken to OP-2 on 19/02/2015. This time Issue was found in touch id. After confirming the touch id issue by the Service Centre Of Apple on 21/12/15, they have delivered me swapped I-phone on 22/12/15.
4.  That the swapped I-phone carrying Serial Number-FFNPQN3HMG5MQ was put to use on 22/12/15. After running hardly for 10 days the Apple I-phone 6 once again stopped working. This time Rear Mic of Iphone6 was failed.
5. After confirming the Rear Mic failed issue by the service centre of Apple on 31/12/15, they have delivered a swapped I-phone on 4/1/16 to the complainant.
6. That the swapped I-phone 6 carrying Serial Number-FFPQNAP9G5MQ was put to use on 4/1/16. After running hardly for 1 Month the Apple Iphone-6 once again stopped working. This time issue was found in Receiver of Iphone-6.
7. After confirming the issue in Receiver by the service centre of Apple on 22/2/16, they have delivered the swapped phone to the complainant on 24/2/16.
8. That the swapped phone carrying Serial Number-F17Q5TRKG5MQ was put to use on 24/2/16. After running hardly for 1 Month the Apple Iphone-6 once again stopped working. This time Issue was found in home button and device was heating like sun.
9. That at this point of time I (complainant) refused to have any service from the Service Centre of Apple and seeks the refund of Rupees- 53,500 that he had spent on buying of iphone-6 on 21/12/2014.
10.  That as per the advice of the Manager of Apple Service Centre, the complainant contacted the Apple Pvt. Ltd. directly by contacting their toll free number. After facing a lot of mental and physical harassment in the last1-year Apple Pvt. Ltd. decided to give to the complainant a new I-phone 6 and assure that in future he will not be facing any inconvenience in apple device.
11.  That on 18^th April, 2016 Blue dart Company picked up my faulty iphone-6. For 1 month and 1 week I survived without the phone and due to this the complainant had suffered a lot of mental distress.
12. That due to non-availability of iphone-6, Apple Pvt. Ltd. delivered me Iphone-6s, 16 GB, Gold Colour on May-26,2016 Model No. MKQL2HN/A through Blue dart Courier Service and promised the complainant that this time the complainant will not be facing any problem in the apple device.
13. That the Iphone-6s carrying IMEI Number-355768072699005 was put to use on May-26,2016. After running hardly for 3 Months the Apple Iphone-6s and its Charger and earphones stopped working. This time Issue was found in Ringer silent button. A photocopy of the Receipt of Service Centre is furnished at Annexure-8.
14. That this issue was reported to the Apple Pvt. Ltd., Bengaluru in October, 2016 but they took this matter lightly and even have paid no attention towards this issue. Apple Pvt. Ltd. wanted to escape from this issue and even stopped reverting.
15. That the Apple Pvt. Ltd., Bengaluru stopped reverting and paid no attention towards this issue, the Complainant decided to go to the Service Centre of Apple and after diagnosis of the device, the Service Centre of Apple confirmed the Issue in Ringer silent button of the I phone and also confirmed issue in adapter and earphone of the device.
16. That as per the assurance of Apple Pvt. Ltd. this time the complainant did not want any kind of service from Apple company as Apple Company has failed to resolve the problem of the complainant.
17. That on 4^thNovember, 2016, the adapter and earphone of the apple device has been submitted in the Service Centre of Apple due to non-functioning.
18. That on November-8, 2016, the replaced adapter and earphone was delivered to the complainant. A photocopy of the Receipt was furnished at Annexure-8.
19. That till then the complainant is using the faulty phone and when Apple company is not ready to listen the issue of the complainant then finally the complainant decided to approach the Hon’ble District Forum by filing the present Complaint prayed for following reliefs:-

    1. Refund the cost of the iphone-6s Rupees-62,000 along with 18% Interest.

    2. Pay a sum of Rupees-25000/- towards the physical strain and mental agony suffered by the complainant and his family members.

    3. Pay a sum of cost Rs.1000/-towards the cost of this Petition; or which Act of kindness, the complainant shall, as is duty bound, ever pray.

 

2. Accordingly, on 25/01/2017 after hearing arguments on admission, notice was issued to OPs returnable on 29/03/2017. Both OPs appeared before the forum on 29-03-2017 and took time for filing a reply, accordingly the matter adjourned to 26/07/2017 for filing a reply on behalf of OPs.  OP No. 2 filed reply and matter adjourned to 3/10/2017 for filing reply of OP No.1. Brief facts of the reply on behalf of OP No.2 are as follows:-

 

1. OP no. 2 submitted that iPhone sold in India by the Opposite party  No.2(OP2) through their authorized dealers/resellers are known for their cutting edge technology and utmost customer satisfaction.  Due to the said attributes the iPhone is one of largest selling smart phones in the world and India.  The said iPhones is undergo strict quality tests to ensure that the said products maintain high standards to ensure that they do not fail to meet customer standards.
2. That the present complaint is malafide and devoid of established principles of law in a manner to mislead this Hon’ble Forum.  It is submitted that it is a common market principle and also an established position of law that consumers cannot claim relief under the customer Protection Act 1986, with complete disregard to the warranty policies of manufacturers (in this case Apple warranty).  The Warranty provision is annexed as Annex-R-1.  An extract of warranty detailing the issue where the warranty does not apply is produced as follows :

what will apple do in the event the warranty is bReached :

     If during the warranty period you submit a claim to Apple or an AASP in accordance with this warranty, Apple will at its option.

 i)  Repair the apple product using new or previously used parts that are     equivalent to new in performance and reliability.

ii)   Replace the Apple product with the same model (or with your consent a product  that has similar functionality ) formed from new and/or previously used parts that are equivalent to new in performance and reliability or

iii)   Exchange the Apple Product for a refund of your purchase price.

Apple may request that you replace certain user-installable parts of products.  A replacement part or product, including a user-installable part that has been installed in accordance with instructions provided by Apple, assumes the remaining warranty of the Apple Product or ninety (90) days from the date of replacement or repair whichever provides longer coverage for you.  When a product or part is replaced or a refund provided, any replacement item becomes your property and the replaced or refunded item becomes Apple's property

 

3. That as per the Repair history maintained by the OP-2 (OP-2) who is the authorised service provider of the OP-2 shows that the complainants’  iPhone had been replaced around five times and was also provided with a superior iPhone 6S model.  The said findings of the Opposite Party (OP-1) who is the authorised service of the OP-2 are produced as Annexure by the complainant in his complaint.

 

4. Op-2 urged that the Complainant purchased the I Phone 6, 16 GB Gold bearing IMEI Number 356960064595932 for the cost of Rs. 53,500/- (Rupees Fifty Three Thousand Five Hundred Only) on 21-12-2014 from an unauthorized dealer/reseller however it admitted that the Complainant visited the Opposite Party No. 1 an authorized service provider of the Opposite Party No. 2 for some alleged issues in the device and got his device replaced 5 times.

 

5. The Complainant approached the 1st Opposite Party on 07-08-2015 and since the device was under warranty, the device bearing Serial No. C79NRQCBG5MQ was recommended for replacement  under warranty and replaced with the new I Phone 6 bearing Serial No. C39PJWBRG5MQ and on 22-12-2015 the said device was replaced with new I Phone 6 bearing Serial No. FFPQN3HMG5MQ. The Complainant visited the 1st Opposite Party and got his device inspected, since the device was under warranty: they replaced the device with the new I Phone 6 bearing Serial No. FFPQNAP9G5MQ on 02-01-2016 and the same were replaced again with new I Phone 6 bearing Serial No. F17Q5TRKG5MQ on 24-02-2016.

 

6. The Complainant visited Opposite Party No. 1 again on 23-05-2016 for which the 1st Opposite Party provided the Superior model of I Phone 6 i.e., I Phone 6 S bearing Serial No. F17R940SGRY7 and the same handed over to the Complainant in the working condition. Thereafter the Complainant never visited the 1st Opposite Party anytime. It is pertinent to mention that   the Opposite Party No. 2 has been prompt in providing service through its authorized service provider whenever the Complainant has visited them and so there is no question of causing deficiency in service on the part of the 2nd Opposite Party.

 

7. The Opposite Party No. 2 has not caused any sort of difficulty or loss to the Complainant. It is pertinent to mention that the Complainant has not suffered any sort of mental agony or harassment due to the 2nd Opposite Party. It is pertinent to mention that the Complainant has not produced any sort of evidence in support of his claims. Despite of the same, the Complainant has filed this frivolous complaint by twisting the facts in order to mislead this Hon'ble Forum with an intention to enrich undeserving financial benefits from the 2nd Opposite Party. Hence this complaint stands not maintainable and is liable to be dismissed for having no merits.

 

8. It is the result of Complainant's negligently handling of the device and not due to manufacturing defect or deficiency in service on the part of 2nd Opposite Party. Despite of Complainant's own negligence the Complainant is now trying to claim refund/replacement. It is pertinent to mention that the  Opposite Party No. 2 cannot be held liable for the Complainant's acts and omissions. Hence the  Opposite Party No. 2 is not attributable for any sort replacement/refund and compensation to the Complainant.

 

1. The Complainant has not produced any sort of expert opinion to prove that the device was defective. It is pertinent to mention that the Complainant has not produced any evidence to show that the  Opposite Party No. 2 will replace the device beyond the warranty policy or the device was defective with the warranty policy. It is pertinent to mention that  Opposite Party No. 2 never denied any sort of service or assistance to the Complainant whenever he visited them and so the  Opposite Party No. 2 cannot be held liable for any compensation to the Complainant for his own acts and omission. It is pertinent to mention that the Complainant is eligible for an out of warranty paid service. It is also pertinent to mention that the Complainant have miserably failed to prove that there was deficiency of service or unfair trade practice.

 

 

3. That a rejoinder was submitted by the complainant to the reply of OP No.2 on 03-10-2017. Thereafter despite various opportunities, OP No. 1did not appear, hence proceeded ex-parte vide order dated 16.01.2018.

 

4. The complainant has filed his evidence by way of the affidavit affirming the facts alleged in the complaint on 16/01/2018. The complainant has filed his evidence by way of his affidavit and he has relied on the following documents:

- A photocopy of Invoice No. 4975 is Exhibit Pw1/A

- A photocopy of the Service Centre Receipt dated 7^th August 2015 is Exhibit PW1/B.

- A Photocopy of the Service Centre Receipt dated 22/12/2015 is Exhibit PW1/C.

- A photocopy of the Service Centre Receipt dated 31/12/2015 is Exhibit PW1/D

- A photocopy of Service Centre Receipt dated 22/2/2016 is Exhibit PW1/E.

- A photocopy of the Service Centre Receipt 24/2/2016 is Exhibit PW1/F

-A photocopy of Bill of Iphone-6s dated v26/05/2016 is Exhibit PW1/G.

 

5. Thereafter OP No.2 filed an Affidavit by way of evidence on 03/05/2018. Thereafter the matter was adjourned for filing of written arguments on behalf of both parties. The  OP No.2 has filed their evidence by way of their affidavit and he has relied on the following documents :
   • Board Resolution is Exhibit R-1
   • The warranty Provision is Exhibit R-2
6. Accordingly, OP no. 2 filed written submissions on 10/01/2019 and the matter adjourned for filing written submissions on behalf of the complainant. OP no.2 in their written arguments relied on following judgements :

1. The National State Commission in M/s Tata Motors Ltd Versus Mrs. Surjit Kaur & Others has held that adherence to the instructions contained in the warranty manual is pre-requisite for admission of case of manufacturing defect. Further the State Consumer Forum Tamil Nadu in N.R. Jayachandran Versus FORD India Limited had held that the Owners instruction manual should be followed.

 

2. The Supreme Court of India in C.N. Anantharam v. Fiat India Ltd. and Ors that as the consumer failed to prove any manufacturing defect in the product and he is not liable to claim compensation for the same.

 

3. The State Consumer Forum, Punjab in Lagger Industries Ltd. vs. Diamler Chrysler India Pvt. Ltd. it was held that in absence of any manufacturing defects consumer cannot claim benefits/ relief. A clear perusal of these authorities established the fact that the Complainant did not follow the instructions mentioned in the Warranty, thus the APPLE are not obligated to service/replace his I Phone as per the Warranty policy.

 

4. The Complainant has not produced any sort of evidence in support of his claims. The Complainant has miserably failed to produce expert opinion to show that the device had manufacturing defect in it. The Opposite Party No.2 has not caused any sort of difficulty or loss to the Complainant. The Complainant has not suffered any mental agony due to Opposite Party No. 2. The Contentions put forth by the Complainant are sham and have been narrated in a manner to give them an apparent colour of reality. Thus, rendering the complaint, liable to be dismissed for not having merits.

 

5. The Opposite Party No. 2 has been prompt in providing service through its authorized service provider by diagnosing the device and informing about the condition and issues in the device, when the Complainant had visited them and so there is no question of deficiency in service on the part of the Opposite Party No. 2. It is pertinent to mention that the Complainant has failed to prove deficiency in services against the 2nd Opposite Party. There is no record of the Opposite Party No. 2 denying any service or refusing to provide service to the Complainant. The Opposite Party No.2 has diligently under taken the analysis and advised the Complainant that his device has been replaced under warranty and the same was handed over to the Complainant. It is pertinent to mention that the Complainant has not failed to establish the claim of deficient services and also admitted the same nor has any evidence been provided. Therefore, such cases as in the present case cannot be covered under the terms and conditions of the warranty which has not indulged in any alleged unfair trade practice. Hence the Opposite Party No. 2 is not attributable for any sort of refund/replacement and compensation to the Complainant.

 

6. The Supreme Court of India in C.N. Anantharam v. Fiat India Ltd. and Ors that as the consumer failed to prove any manufacturing defect in the product and he is not liable to claim compensation for the same. The State Consumer Forum, Punjab in Lagger Industries Ltd. vs. Diamler Chrysler India Pvt. Ltd. it was held that in absence of any manufacturing defects consumer cannot claim benefits/ relief. A clear perusal of these authorities established the fact that the Complainant did not follow the instructions mentioned in the Warranty, thus the 1" Opposite Party is not obligated to service/replace his iPhone as per the Warranty policy. The Complainant has miserably failed to prove that there was deficiency of service or any unfair trade practice on part of the 1st Opposite Party.

 

7. A perusal of the Warranty policy annexed as ANNEXURE R1 in the Objections clearly states that the Warranty period is of only one year. Further, the Hon'ble National Consumer Forum in M/s. Tata Motors Pvt. Ltd vs. Surjit Kaur & others has clearly held that in order to get service of products within warranty the Complainant would have to adhere to the warranty provisions There is no iota of evidence to support the fact that the Opposite Parties have failed to provide services to the Complainant. It is evident that he has contacted this Hon'ble Forum with unclean hands and the Opposite Parties have not failed to provide services to him and have performed their duty. The Complainant is now blatantly claiming negligence and deficiency of service, which is not admissible. The Complainant has clearly not followed the provisions of the Warranty hence, the claim for deficiency and negligence does not hold water.

 

8. The Complainant has not produced any evidence to prove that the device had manufacturing defect in it. In fact, it is the result of negligently handling of the device and not due to manufacturing defect or deficiency in service. It is pertinent to mention that the main ingredient of this complaint is neither established nor proven by the Complainant. There is no expert evidence to support the complainant's claim of the device being allegedly defective. This defeats the very purpose of filing this complaint. It is pertinent to mention that the Complainant has not produced any evidence to show that the Opposite Party will replace the device beyond the warranty policy or the device was defective with the warranty policy. It is pertinent to mention that Opposite Party no. 2 never denied any sort of service or assistance to the Complainant whenever he visited them and so the Opposite Party No. 2 cannot be held liable for any compensation to the Complainant for his own acts and omission. It is pertinent to mention that the Complainant now is eligible for an out of warranty paid service. The Complainant has miserably failed to prove that there was deficiency of service or unfair trade practice.

 

1. The Complainant is misleading the facts and trying to disparage the rapport of  Opposite Party No. 2 by alleging frivolous claims, his allegations has led to affect the goodwill of 2nd Opposite Party. The Opposite Party No.2 strongly believes that, the Complainant has malicious intent to come up with such allegations and to cause inexplicable losses to Opposite Party No.2.

 

10. The Complainant being a white collared man has failed to understand the fundamental knowledge over his own alleged issue. The present complaint herein not only deserves a dismissal deserves dismissal for misusing the provisions of law, must also warrants imposition of heavy costs on the Complainant for such mischievous and irresponsible acts as a mark of example to such other dubious consumers, who leave no stones unturned to take unwarranted benefit of an equity jurisdiction.

 

11. A perusal of the Complaint clearly shows the real intentions of the client. Since the device was under warranty, the AASP had replaced. the device with the Superior model i.e., I Phone 6 S and thereafter the Complainant never approached AASP anytime and so there is no question of causing deficiency in service on the part of the 2nd Opposite Party. There is no shared of evidence produced by the Complainant to show that the Apple had assured that it will replace the device beyond the Warranty policy or the device was defective within the Warranty policy. Hence the  Opposite Party No. 2 is not attributable for any sort of refund/replacement and compensation to the Complainant.

 

• WHEREFORE, it is most humbly prayed that this Hon'ble Forum be pleased to dismiss the complaint as not maintainable, in the interest of justice and equity.

 

7. The complainant filed his written submission on 6.05.2019. Finally, oral arguments were heard on 06-07-2022. We have carefully gone through the record of the case and have heard submissions of the complainant.

 

8. Ld Counsel for the Complainant argued that the opposite party stated that the entire fault is from the complainant’s side, which is factually incorrect. Especially the Apple Iphone-6 Home Button abruptly stopped functioning in August, 2015. It clearly shows that the device was having a manufacturing defect.

 

9. Further, the opposite party stated that no evidence has been provided, which is incorrect. The evidence has already been submitted to the commission and the opposite party as well, which contains a video showing the display making a clicking sound, which proves that all the handsets were defective. This does not need an expert’s opinion when it’s being clearly seen in the video.

 

10. The complainant has submitted video as evidence that clearly show the issues mentioned. It has already been submitted in the court and to the opposite party 1 as well to support the complaint made by the complainant. Since the video clearly shows the defects, it does not need any expert’s opinions.

 

11. Learned counsel for OP No.1 argued that there is no deficiency in service on the part of OP No.1, whereas Complainant requested several times to get his mobile phone set replaced but the complainant herself refused to accept the same and insisted respondent refund the amount back. There is no merit in the Complaint and prayed to dismiss the Complaint with costs.

 

12. Admittedly, on 21^st December,2014, the complainant had purchased one brand new I phone 6,16 GB, Gold Colour carrying IMEI No.-356960064595932 for Rs-53,500/- marketed by opposite party No.1 vide invoice dated 21.12.2014 exhibited as Ex.CW1/a. Ex.CW1/b (colly) are the Service Record/job sheet dated 05/08/2015, 16/12/2015, 31/12/2015, 22/02/2016, 22/2/2016, 09/04/2016, 4/1/2016 and 23/01/2017 which shows that the mobile set was under warranty and the fault describes as a 'display pop up issue'. The phone was replaced for the 5 times under the various Job sheets time to time. it proves that the complainant from the very beginning approached opposite parties on account of the defective set. It has also been mentioned in the complaint and the various job sheet dated 05/08/2015, 16/12/2015, 31/12/2015, 22/02/2016, 22/2/2016, 09/04/2016, 4/1/2016 and 23/01/2017 that the defective device was delivered to herein replacement. Vide job sheet dated 23/01/2017 complainant has specifically stated that the opposite party no. 1 had given him the endorsement certificate as  “resented the device, issue not resolved. Device having confirmed ring/silent button issue and front camera issue. Need replacement. But customer doesn’t want to proceed for replacement. Device collected as it is by the customer. Opposite party No.1 stated in its reply that the complainant did not again offer the mobile set for replacement because now the handset was out of warranty.

 

13. In our opinion, a person purchases a mobile handset, with a view to using the same, so that she/he could communicate with her/his relations, friends, and other persons acquainted with her/him, frequently. The mobile handset is the most important mode of communication.

 

14. In the instant case, the complainant was supplied a defective mobile set subsequently. One can imagine the plight of the purchaser that he opened the box containing the mobile set supplied by the opposite parties and found it defective. he visited the Opposite party no.3 wherein they declared the set defective. Again a mobile set was supplied in replacement which was again found defective. The complainant again visited the Opposite party no.3 wherein they verified that the replaced mobile phone is defective. Again he requested for replacement/refund. The opposite parties declined the request. It is not the case that after using a mobile phone for a reasonable period a defect was developed in the set. In this case, the mobile phone supplied was defective inherently. Least of all the opposite parties should have doubly checked the replaced mobile phone before delivering it to the complainant. Given the high cost of Apple industry phones as compared to other company’s mobile in this business.

 

15. It is a case of unfair trade practice and deficiency in service where the opposite parties are supplying defective products again and again and also refused to return the amount received.

 

16. In view of the above, the complaint filed by the complainant is allowed and opposite parties No.1 & 2 are held liable jointly and severally and are directed:-

1. To refund the cost of the mobile phone Rs.53,300/- alongwith interest @ 6 % per annum from the date of filing till date to the complainant within 30 days from the date of receipt of a certified copy of the order. However, the complainant was required to surrender the defective mobile phone, in question, to any of the OPs within 7 days from the date of receipt of the certified copy of this order.
2. To pay compensation for mental harassment and agony of Rs.15,000/- and litigation expenses of Rs.5,000/- to the complainant within 30 days from the date of receipt of a certified copy of this order.

 

17. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.

 

18. Let a copy of this order be sent to each party free of cost as per Regulation of the Consumer Protection Regulations.

 

19. File be consigned to record room.

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President