DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C. C.  CASE  NO. 439/2018

           Date of Filing:                       Date of Admission:                            Date of Disposal:                

                12.11.2018                                19.11.2018                                           05.01.2023

P R E S E N T             :-       Smt. Monisha Shaw …………………. Member.

                                      :-        Sri Abhijit Basu……………………….Member

JUDGMENT / FINAL ORDER

             This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 (as amended up to date) alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.

The brief fact of the complaint is that the Complainant, SUNIL KUMAR SINGH purchased an I-phone X, 256 GB variant design by Apple in California, Model No. A-1865 (IP Part No. MQA82HN/A(S), Sr. No. F2LVROFEJCL6, IMEI /MEID 356718087960008 (herein after refer to as ‘the said phone’) from the Opposite Party No. 2, which is the franchise of the Opposite Party No. 1 which, in turn is the authorized dealer of the Opposite Party No. 3 on 10^th December, 2017 for an amount of Rs. 1,02,000/- (one lakh two thousand only). On the next date, after purchasing, the Complainant found that the said phone had some tiny inconspicuous scratches on its body which was a manufacturing defect since the phone was not used properly yet then. The Complainant rushed to the O.P. No. 2 and expressed his grievance.

As per Complainant’s version that the O.P. No. 2 looked into the matter and persuaded to visit the Service Centre. Then the Complainant went to the authorized service centre of the O.P. No. 3 maintained by O.P. No. 1 where the Complainant told that neither the parts can be arranged nor the phone can be cured. Thereafter the Complainant went to the opposite party no. 2 again and asked for the said phone to be replaced as the defect appearing on it was a manufacturing defect. The representative of the opposite party no. 2 present there denied from replacing the said phone and stated that he will mail and contact his higher authorities for finding a solution  to the grievance.

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               C. C.  CASE  NO. 439/2018

The Complainant stated that he visited repeatedly but the op no 2 falsely assured. Almost seven months since the purchase of the said phone, the defective condition of the said phone aggravated and a thin whitish distorted line appeared on the screen of the said phone and responsiveness to touch on the said screen has been effected and the screen is disturbed.

At last the Complainant sent a letter through his Ld. Adv. upon op no 1,2,3 & 4 to arrange for replacement of the phone due to manufacturing defects and within the warranty period. In response one Maria Deffense, Executive Liaison, Apple, Executive Relations EMEIA, Hollyhill Industrial Estate, Hollyhill, Cork, Ireland on behalf of the op no 3mailed to the Ld. Advocate of the Complainant and asked for inages of the phone to be mailed to her and more mails were exchanged between the Maria Deffense and the Ld. Advocate of the Complainant.

             The complainant further stated that Maria told him to visit the service centre of Apple maintained by the opposite party no.1 and he visited to the service centre on 19^th September, 2018, and told that the phone is incurable. The phone is still within the warranty period but since the opposite parties herein have committed deficiency in service and he is entitled to get back the money that he paid for the phone amounting to Rs. 1,02,000/- along with interest at the current banking rate.

Having no other alternative, the Complainant lodged this case on 12/11/2018. It is evident from the record that after receiving the said notice the OPs appeared before this Commission and filed W/V on 30/01/2019. In the W/V, the O.P no 1&2 submitted that the petition and the reliefs claimed are not maintainable it should be dismissed. The O.P. No. 1 and 2 also stated that the Complainant used the phone and as such after the box has been opened the phone has been used so the Opposite Parties are not responsible for any inconspicuous scratches. The Opposite party No. 1 and 2 acted as one of the service centre of the O.P. No. 3 and with instruction from the O.P. No. 3 in repair work under warranty or not under warranty are concluded. The O.P. No. 1 and 2 are not the manufacturer of the product and as such have no responsibility towards any manufacturing defect (if any) of the product. It is stated by the Opposite Party No. 1 that as per the protocol and arrangements in the case of manufacturing defects, the Opposite Party No. 1 is required to send the device / product to the Opposite Party No. 3 for checking if the device or product is actually a manufacturing defect or any other defect. The O.P. No. 1 duly submitted its feedback with regard to the device to the O.P. No. 3 and 4 and informed them about the situation. The O.P. No. 1 also stated that the Complainant had all time refused to submit the device and therefore any progress was delayed.

The Opposite Party with due instructions from the said Maria Deffense advised the Complainant to submit the device so that the device could be checked with regards to the complaint in the device. The O.P. No. 3 and 4 are reputed brand in the market and as such due to the Complainants refusal to submit the device the O.P. No. 1 could not make any progress with regard to the defects in the products manufacturing or any other. The O.P. No. 1 also stated and submitted that the warranty for the phone is provided by O.P. No. 3 and as such there is no brevity of contact between the O.P. No. 1 and the Complainant. The O.P. No. 1 is the Service Centre and Re-seller of the products manufactured by the O.P. No. 3.

So, the complaint case should be dismissed with heavy cost.

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               C. C.  CASE  NO. 439/2018

The Opposite Parties also denial that the complaint is not maintainable and is liable to be dismissed.

Prayer of the Complainants:-

1. An order for payment, to be made by the opposites, of the amount paid towards buying the said phone of Rs. 1,02,000/- with up-to-date interest thereto as per the current banking rate and Rs. 2,00,000/- as compensation for deficiency in service, harassment and mental agony endured by the Complainant, and Rs.25,000/-towards litigation charges upon the returning of the said phone by the Complainant to the Opposite Party No.1
2. Such other or further order or orders on the opposite parties for such mala fide intention of deliberate lapses, gross negligence, deficiencies and unfair trade practices on the part of the opposite parties on rendering services and for the continuous mental torture to the bonafide consumer, i.e., the Complainant herein.

Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?

2. Whether the Complainant is entitled to get relief / reliefs in this case.

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of the materials along with the supporting affidavit related to documents available in the case record as well as hearing of argument by the Ld. Advocate for the Complainant, it is revealed that the Complainant had purchased an iphone X, 256 GB variant designed by Apple in California, Model no. A-1865 (IP), from the O.P no 2 which is franchisee of the opposite party no. 1, in turn, is the authorized dealer opposite party no 3 on 10^th December, 2017, for an amount of Rs.1,02,000/- from the O.P no 2.

 Here the status of the OPs is service provider and the Complainant being a customer of the OPs so the Complainant becomes a consumer as per Consumer Protection Act, 2019.

The Complainant resides at

the claimed amount does not exceed the pecuniary limit of this Commission. Therefore, this Commission has ample power to try this case.

We have perused the complaint as well as Examination-in-Chief on affidavit filed by the Complainant. We have perused the copy of the money receipt, which was provided by the O.P members with the supporting affidavit and other documents filed by the Complainant. On perusal of the aforesaid materials it appears that the Complainant paid Rs. 1,02,000/-.for the purchasing of the said phone but the said phone is defective, as such there is deficiency in service on part of the O.Ps.

The discussed points bear positive results. As such we are of the view that the Complainant is entitled to receive another new same branded phone after deposited the disputed phone or entitled to refund the amount which was paid by the Complainant for the said phone. with interest and he is also entitled to other relief/reliefs and that will be reflected in the ordering portion.

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               C. C.  CASE  NO. 439/2018

Thus all the points are disposed of accordingly.

Hence, for ends of justice:

It is

Ordered

That the instant case being no.C.C. - 439/2018 be and the same is allowed on contest against the OPs with cost.

The Complainant, do get a decree of Rs. 1,02,000/- from the O.Ps after receiving the said phone which was lying to the Complainant. The Complainant do get a further decree of Rs. 10,000/- as compensation and Rs. 5,000/- as litigation cost within 02 (two) months failing which the Complainant do get the decree with 6% interest on the total decretal value from the date of filing till realisation.

In default the Complainant is at liberty to put this decree into execution according to law.

Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Dictated & Corrected by

           Member                                                                                                                                        

           Member                                                                                            Member