Before the District Consumer Disputes Redressal Forum, Room No. 208 2nd Floor, District Administrative Complex, Tarn Taran
Consumer Complaint No : 78 of 2017
Date of Institution : 03.10.2017
Date of Decision : 10.02.2020
Sarabjit Singh son of Hardev Singh resident of Puran Singh Market, near Jandiala Chownk, Tarn Taran Tehsil and District Tarn Taran.
...Complainant
Versus
- Stratford Trade Sales Private Limited No. 09, 2nd & 3rd Floor, 17th A, Main Road, Koramangala, Banglore, State Code-29, Karnatka.
- Apple India Private Limited, 19th Floor, Concorde Tower C, UB City, No. 24, Vittal Mallya Road, Banglore-560001, Karnataka.
…Opposite Parties.
Complaint Under Section 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. Charanjit Singh, President
Smt. Jaswinder Kaur, Member
For Complainant Sh. M.P. Arora Advocate
For Opposite Party No.1 Ex parte
For Opposite Party No. 2 Sh. Parminder Singh Advocate
ORDERS:
Charanjit Singh, President;
1 The complainant Sarabjit Singh has filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Stratford Trade Sales Private Limited No. 09, 2nd & 3rd Floor, 17th A, Main Road, Koramangala, Banglore, State Code-29, Karnatka and others (Opposite Parties) on the allegations of deficiency in service and negligence in service on the part of opposite parties by alleging that the opposite party No. 1 is dealing in online business of selling many types of products belonging to various companies including the mobile phone of Apple i.e. of Opposite Party No.2. The complainant was in need of an iphone 6s plus version 9.0.2 for some specific purpose as such the complainant had ordered a mobile phone i.e. Apple-i phone 6s Plus 16 GB Silver 4 G with specific version 9.0.2 to opposite party No. 1. Afterwards the O.P. No.1 has sent the Apple- iPhone 6S Plus-16 GB Silver 4G worth of Rs. 41,650/- and shipped to the complainant vide order No. 100025993. The complainant has received the mobile phone and has paid the full amount of Rs. 41,650/- to the concerned carrier. The complainant wants to purchase the mobile phone with specific version 9.0.2 as such he has ordered the phone with the same version after verifying about all the specifications as advertised by the OP No. 1 with regard to product/ mobile phone. When the complainant has started the mobile phone, it got auto updated to the version 10.0.3 by itself as such it has become useless for the complainant as it has been specifically mentioned that the complainant was in need of the purchase of the mobile phone with specific version 9..0.2 as such he ordered the phone with the same version. The above said updated version is of no use to the complainant as such the complainant has sent several mails to the OP No. 1 in this regard which the request to refund the amount of Rs. 41,650/- or to exchange the mobile phone with the version as required and ordered the complainant. The opposite party has taken much in picking up the mobile from the complainant in order to resolve the problem in the mobile as such the complainant has sent back the mobile to the opposite party No.1. The complainant has requested the opposite parties No. 1, 2 to resolve the problem in the mobile phone but all in vain. The opposite parties have not paid any heed to the genuine request of the complainant. The complainant has also served a legal notice to the opposite party No. 1 in this regard but all in vain and after receiving the notice, the opposite party No. 1 has sent back the mobile in an arbitrary manner after causing the loss of 2 months of warranty period to the complainant. The opposite parties have finally declined to return the mobile and told the complainant that the opposite parties are unable to exchange the mobile. The complainant has prayed that the opposite parties may be directed to pay the total purchase amount of the mobile phone i.e. Rs. 41,650/- with interest up to date. Or to exchange the mobile phone with the brand new mobile phone of same model or to extent the warranty period of the mobile phone for the period taken by the opposite parties in taking final decision regarding the mobile and to pay Rs. 20,000/- as compensation and Rs. 10,000/- as litigation expenses.
2 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 2 appeared through counsel and filed written version contesting the complaint on the preliminary objections that the present complaint is malafide, devoid of merits and contradicts established principles of law. The instant complaint has been devised to mislead this Forum. It is a common market principle and an established position of law that in case the device has issues covered within the Warranty policy, the same shall be repaired or replaced, as the case may be. The products that are not faulty and are functioning well cannot be replaced merely at the discretion of the complainant. The complainant cannot claim warranty as provided by the manufacturer, if there is no defect detected by the AASP. The customers must comply with the Warranty policies else it will be considered as breach of the Warranty Policies and they cannot claim relief under the Consumer Protection Act 1986. An extract from the Warranty is produced as follows:-
How to obtain Warranty service?
Please access and review the online help resources described below before seeking warranty service. If the Apple Product is still not functioning properly after making use of three resources, please contact an apple representative or, if applicable, an apple owned retail store (“Apple Retail”) or AASP, using the information provided below. An Apple representative or AASP will help determine whether your Apple Product requires service and, if it does, will inform you how Apple will provide it. When contacting Apple, if it does, will inform you how Apple will provide it. When contacting Apple via telephone, other charges may apply depending on your location. 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, misuses, fire, earthquake or other external causes (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 Authorised 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 produce 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 (e.g. by presenting proof of purchaser.) There is no record of any issue recorded with regard to the complainant’s iphone 6 Plus bearing IMEI No. 353290076529833, which is pending with the OP2. Infact there is no record of complainant having visited any of the authorized service providers of OP2 with regard to any issue pertaining to his iPhone. As per the warranty issued by the OP2, the iPhone will be replaced/ serviced if it is inspected by an authorized service provider and found to be having issues(if the warranty is not violated). In the present complaint, the complainant is having issues with regard to the particular iPhone sold to him by the OP1, which does not match the specific model he wanted. Hence its an issue of a wrong model sold by the OP1 to the complainant. Hence it has to be resolved by the OP1. The OP2 has no role to play in this matter and it’s not applicable against it. On this ground itself, this complaint is liable to be dismissed. On merits, the opposite party No. 2 is not aware of the sales made by the OP1 and is not responsible for the same. The OP1 is not known to OP No. 2 and OP 2 is not aware or responsible for the transaction made between the OP1 and the complainant. The OP2 is not aware of the specific version of the mobile required by the complainant. The receipts produced by the complainant clearly show that the OP1 has sold the device to the complainant. OP No. 2 is not aware of the specific version, the complainant had ordered from the OP1. The OP2 is not even a party to the whole transaction as it did not supply the wrong version mobile to the complainant. The version ordered by the complainant was directly with OP No.1. There is no privity of contract between the OP No. 1 and OP No.2. The OP No. 1 is not an agent or authorized reseller of the OP No.2. The transaction was directly between the OP No. 1. All the correspondences produced by the complainant in this complaint including the legal notice were issued by complainant to the OP No.1. This clearly shows that the OP No.1 is responsible for the loss suffered by the complainant. The OP No.2 is not a party to the transaction between the OP No.1 and the complainant. There is no evidence of any sort of defect in the said mobile sold by the OP No.1 to the complainant. If there was a defect and it was under warranty, it would have been repaired/ replaced under Warranty by OP No.2. However, in the present matter it is a case of wrong product sold by the OP No.1, hence its liable to clear all losses of the complainant. All the other allegations in the complaint have been denied by the opposite party No. 2 and prayer was made for dismissal of the complaint with costs.
3 Notice was issued to the opposite party No.1 But none has appeared on behalf of opposite party No.1. Therefore, opposite party No. 1 was proceeded against exparte vide order dated 21.11.2017 by this Hon’ble Court.
4 In order to prove her case, the complainant has tendered in evidence his affidavit Ex. C-1 alongwith documents Ex. C-2 to Ex. C-8 and closed the evidence. Ld. counsel for the opposite Party No. 2 tendered in evidence affidavit of Priyesh Povanna Ex. OP2/1 alongwith documents Ex. OP2/2 and closed the evidence.
5 We have heard the Ld. Counsel for the complainant and opposite party No. 2 and have gone through the evidence and documents placed on the file by the parties.
6 Ld. counsel for the complainant contended that the opposite party No. 1 is dealing in online business of selling many types of products belonging to various companies including the mobile phone of Apple i.e. of opposite party No.2. The complainant was in need of an iphone 6S plus version 9.0.2 for some specific purpose as such the complainant had ordered a mobile phone i.e. Apple-i phone 6s Plus 16 GB Silver 4 G with specific version 9.0.2 to opposite party No. 1. Afterwards the O.P. No.1 has sent the Apple- iPhone 6S Plus-16 GB Silver 4G worth of Rs. 41,650/- and shipped to the complainant vide order No. 100025993. The complainant has received the mobile phone and has paid the full amount of Rs. 41,650/- to the concerned carrier. The complainant wants to purchase the mobile phone with specific version 9.0.2 as such, he has ordered the phone with the same version after verifying about all the specifications as advertised by the OP No. 1 with regard to product/ mobile phone. When the complainant has started the mobile phone, it got auto updated to the version 10.0.3 by itself as such, it has become useless for the complainant as it has been specifically mentioned that the complainant was in need of the purchase of the mobile phone with specific version 9.0.2 as such, he ordered the phone with the same version. The above said updated version is of no use to the complainant as such, the complainant has sent several mails to the OP No. 1 in this regard which the request to refund the amount of Rs. 41,650/- or to exchange the mobile phone with the version as required and ordered the complainant. The opposite party has taken much in picking up the mobile from the complainant in order to resolve the problem in the mobile as such the complainant has sent back the mobile to the opposite party No.1. The complainant has requested the opposite parties No. 1, 2 to resolve the problem in the mobile phone but all in vain. The opposite parties have not paid any heed to the genuine request of the complainant. He further contended that the complainant has also served a legal notice to the opposite party No. 1 in this regard but all in vain and after receiving the notice, the opposite party No. 1 has sent back the mobile in an arbitrary manner after causing the loss of 2 months of warranty period to the complainant. The opposite parties have finally declined to return the mobile and told the complainant that the opposite parties are unable to exchange the mobile and prayed that the present complaint may be allowed.
7 Ld. counsel for the opposite party no. 2 contended that the present complaint is malafide, devoid of merits and contradicts established principles of law. The instant complaint has been devised to mislead this Forum. It is a common market principle and an established position of law that in case the device has issues covered within the Warranty policy, the same shall be repaired or replaced, as the case may be. The products that are not faulty and are functioning well cannot be replaced merely at the discretion of the complainant. The complainant cannot claim warranty as provided by the manufacturer, if there is no defect detected by the AASP. The customers must comply with the Warranty policies else it will be considered as breach of the Warranty Policies and they cannot claim relief under the Consumer Protection Act 1986. He further contended that there is no record of any issue recorded with regard to the complainant’s iphone 6 Plus bearing IMEI No. 353290076529833, which is pending with the OP No. 2. Infact there is no record of complainant having visited any of the authorized service providers of OP No. 2 with regard to any issue pertaining to his iPhone. He further contended that as per the warranty issued by the OP No. 2, the iPhone will be replaced/ serviced if it is inspected by an authorized service provider and found to be having issues(if the warranty is not violated). In the present complaint, the complainant is having issues with regard to the particular iPhone sold to him by the OP1, which does not match the specific model he wanted. Hence its an issue of a wrong model sold by the OP1 to the complainant. Hence it has to be resolved by the OP1. The OP2 has no role to play in this matter and it’s not applicable against it. On this ground itself, this complaint is liable to be dismissed. The opposite party No. 2 is not aware of the sales made by the OP1 and is not responsible for the same. The OP1 is not known to OP No. 2 and OP No. 2 is not aware or responsible for the transaction made between the OP No. 1 and the complainant. The OP No. 2 is not aware of the specific version of the mobile required by the complainant. The receipts produced by the complainant clearly show that the OP1 has sold the device to the complainant. OP No. 2 is not aware of the specific version, the complainant had ordered from the OP No. 1. The OP NO. 2 is not even a party to the whole transaction as it did not supply the wrong version mobile to the complainant. The version ordered by the complainant was directly with OP No.1. There is no privity of contract between the OP No. 1 and OP No.2. The OP No. 1 is not an agent or authorized reseller of the OP No.2. The transaction was directly between the OP No. 1. All the correspondences produced by the complainant in this complaint including the legal notice were issued by complainant to the OP No.1. This clearly shows that the OP No.1 is responsible for the loss suffered by the complainant. The OP No.2 is not a party to the transaction between the OP No.1 and the complainant. There is no evidence of any sort of defect in the said mobile sold by the OP No.1 to the complainant. If there was a defect and it was under warranty, it would have been repaired/ replaced under Warranty by OP No.2. However, in the present matter it is a case of wrong product sold by the OP No.1, hence its liable to clear all losses of the complainant and prayed that the present complaint may be dismissed.
8 In the present case dispute is that the complainant has purchased the mobile i.e. Apple-i phone 6s Plus 16 GB for Rs. 41,650/- on 7.7.2017 vide Tax invoice Ex. C-3 from the opposite party No. 1 and the complainant ordered the mobile with version 9.0.2 and when the complainant restarted the mobile it got auto updated to the version 10.0.3 by itself. As the complainant was in need of version of 9.0.2 so the complainant immediately on 15.7.2017 e-mailed to the opposite party No. 1 and issued the notice to the opposite party No. 1 that he bought this phone specially version 9.0.2 but it automatically updated to 10.0.3 and requested for replace the product. The e-mail Ex. C-6 dated 24.7.2017 shows that the complainant immediately i.e. within seven days informed to the opposite party No. 1 regarding the same and the complainant has also placed on record e-mails Ex. C-6, Ex. C-7 which shows that the complainant is requesting the opposite party No. 1 to replace the mobile in question. The opposite party No. 1 is also giving response to the e-mails to the complainant in this regard. The complainant has placed on record one email dated 28 July sent by “We understand that your product is restarting automatically. Hence you would like to return the product and receive a refund. We will assist you in this regard.
We have escalated your concern to the relevant team. We will get back to you within 72 working hours with an update regarding the same. We sincerely appreciate your patience in this regard………”
In this way, there is admission of the opposite party No. 1 in the present case that the opposite party No. 1 has admitted that the product is restarting automatically. But as per their commitment after 28 July the opposite party No. 1 has neither replaced the mobile nor made the refund to the complainant. The opposite party No. 1 has proceeded against exparte in this case and all the allegations and evidence of the complainant against the opposite party No.1 remained un-rebutted.
9 In the present case, there is dispute regarding the model and the opposite party No. 2 has not sold the mobile in question, rather the same has been sold by the opposite party No.1. Hence, the opposite party No. 2 has nothing to do with the matter in question, hence, the present complaint is dismissed against the opposite party No.2.
10 In view of above discussion, the present complaint is allowed and the opposite party No.1 is directed to replace the mobile in question with the same model and make with version of 9.0.2 or to refund the price of mobile in question i.e. Rs. 41,650/- to the complainant. The present complaint against the opposite party No. 2 is dismissed. Complainant is also entitled to Rs. 5,000/- ( Rs. Five Thousand only) as compensation on account of harassment and mental agony and Rs 3,500/- (Rupees Three Thousand and Five Hundred only) as litigation expenses from the opposite party No. 1. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
10.02.2020
