FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Succinctly put, the facts relevant with the instant complaint is that, the complainant no.1 purchased an Apple Mobile Phone of model No. I-Phone 6 (16GB) GREY-MG472HN/A, 3520300796191 manufactured by the OP3 on 21/12/2015 and he gave the phone to complainant no.2 for use. Said phone was switched off from 13/08/2016 to 15/08/2016. On 16/08/2016 when complainant no.2 switchedon the phone, a black spot was seen on the left hand top corner of the display screen which in turn substantially increased but the phone was otherwise functioning absolutely trouble free. The complainant no.2 contacted OP4 to solve the problem of black spot in display screen which yielded no result. Thereafter the complainant took the said mobile phone to the OP1 and after scrutiny they informed that the display screen of the handset got damaged and as the same is not covered under warranty therefore it would be repaired on payment of Rs.13,500/-. Further it is stated that the said mobile was under warranty till 15/12/2016 and neither it was disclosed that the display screen is not covered under warranty at the time of purchase of the phone nor it is stated anywhere. Due to necessity the complainant no 2 deposited the phone along with Rs.13,500/- to the OP1 on 29/08/2016 . In the afternoon of 05/09/2016 the complainant no 2 received a phone call from the OP1 informing that upon inspection it was found that in addition to display screen there are other defects in the phone which is not repairable and the phone can be replaced by paying an amount of Rs.27,900/-. The complainant no.2 sent Representative to take back the phone and the deposited sum on 06/09/2016 but it was told by the OP2 that phone will be returned afterwards and the money will be refunded after deduction of Rs.2900/- while the bill has been shown a sum Rs.2400/- as inspection/service charge. Deduction of extra Rs.500/- had no refection in the bill issued by the OP2.Moreover in the service/repair invoice the serial no. and IMEI of the phone was left blank. The complainant no 2informed the entire matter to the OP3 through letter dated 06/09/2016. OP1 sent a mail to the complainant no.2 stating that as soon as they receive said mobile from the OP3they will get back to the Complainant no 2. One Representative of the OP3 called the complainant no 2 on 19/09/2016 to enquire the issue and the same is explained to her by the complainant no.2. Thereafter on 20/09/2016 the complainant no.2 received a call from the OP1 asking him to take back the said mobile and the deposited sum of Rs.13,500/- , but in reality retaining the deposited money they only handed over the defective mobile phone to the complainant no.2 removing the tamper glass protector.Complainant no 2 reported the said incident to the said Representative of the OP3 namely Ms. Margaret Lordan and the OP4. After that Complainant No. 2 received one cheque being no. 007037 dated 22/09/2016 amounting to Rs.13,500/- drawn on ICICI Bank sent by the OP1. Under such circumstances complainants have to come before this Commission for gettingrelief/reliefs as the OPs are indulged in unfair trade practice and fall deficient in service.
The OPs No.1&2 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia,that in respect of non-disclosure of terms of warranty no liability can befastened upon them as the said phone was not purchased through them. OP1 is the Authorized Apple Service Provider and OP2 is an employee of OP1, their role is confined merely to act as a forwarding agency for the defective/damaged products received by them for forwarding to the office of the OP3 who is the Warranty Obligatorfor Apple India and the same is stated on the public website of Apple Inc. Warranty Obligator is one who authorized to carry on the actualrepairs on Apple Devices. In this case upon a preliminary investigation based on visual inspection and upon being advised by the OP3 an amount of Rs.13,500/- had been quoted which was duly accepted by the Agent/Representative of the complainants. Further it is denied by the OPs 1 & 2 hat they have demanded Rs.27,900/- over telephone towards replacement of the said phone . Complainants themselves have admitted that the entire amount of Rs.13,500/- which was paid by them as advance to the OP1 has already been refunded entirely by the same. Moreover they have promptly and on the very subsequent day of receiving the email dated 15/09/2016 from the complainant no 2 sought back the said phone from the OP3 for return of the same and have also kept the complainants promptly notified of the same. Therefore under the circumstances mentioned hereinabove OPs 1 & 2 pray for discharge from the instant proceedings.
Despite service of notice OP3 failed to file WV within stipulated period and as such the case proceeded ex parte against the OP3 vide order dated 12/05/2017. Thereafter one RP being No. R.P./118/2017 was filed by the OP3 before the Hon’ble SCDRC against the said order passed by this Commission and the said R.P./118/2017 was allowed on contest vide order dated 27/03/2019 by the Hon’ble SCDRCby setting aside the impugned order along with the direction to the parties to appear before this Commission on 26/04/2019 for filing WV by the OP3. The instant consumer complaint is resisted by the OP3 by filing WV contending inter alia that the petition of complaint is malafide, devoid of merit and contradicts established principles of law. The case of the OP3 is that the complainant no. 2 is not a party to the contract entered between complainant no.1 and the OPs, as per doctrine privityof Contract. Further it is admitted by the Complainants that from 16/08/2016 the iPhone in dispute had black spot on left side which means that prior 16/08/2016 said disputed device was working absolutely fine without any spot or other issues. This clearly depict that Complainants mishandled disputed device due to which disputed device is beyond the purview of the warranty terms and conditions. The service report dated 29/08/2016 depict that the disputed device has hardware issues and multiple dents were found in the said device. OP3 provides Warranty to the customers provided they follow the provisions mentioned therein and an accidental damage is not covered under warranty. The service centre confirmed accidental damage on the display and further damages like liquid damage and multiple dents were identified when the iPhone was opened. It is admitted fact that the complainant no.2 deposited INR 13,500 with the OP1 and upon inspection it was found that the device had further issues which are not covered under the warranty. Hence, it was liable to be repaired / replaced only on extra payment of INR 27,900. Complainant no.2 paid INR 13,500 in two instalments i.e. INR 11,100 and INR 2,400 and the same was returned to him on 22/09/2016 via cheque. He never made any payment on 06/09/2016 and there is no any supporting invoice / slip to prove such payment. Therefore the complaint petition filed by the complainant is liable to be dismissed.
On service of notice neither OP4 nor any lawyer appeared on behalf of the OP4.
To prove their case all the contesting parties have adduced evidence on affidavit. They have also filed questionnaires and complainants replied the questionnaire set forth by the OPs and their adversaries. OP3 failed to reply the questionnaire set forth by the Complainants. All the contesting parties furnished relevant documents in support of their respective cases. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
Undisputedly complainant no.1 purchased an Apple Mobile Phone manufactured by the OP3 on 21/12/2015 of model no. iPhone 6 (16GB) GREY-MG472HN/A,352030079619178 from Eastern LogicaInfoway Ltd. at E Mall, 6 Chittaranjan Avenue , Kolkata – 700072 at a price Rs.43,500/- and Warranty of the said device was valid upto 15/12/2016.Fact also remains that the complainant No2 paid an amount of Rs.13,500/- in advance to the OP1 for repair works of the said iPhone and get back the full amount along with disputed device after failure of correspondence between the parties. Admittedly the Complainant no.1 gave the said iPhone to the Complainant no.2 for use thereof with his approval. Ld. Advocate for the OP3 argued that that the complainant no. 2 is not a party to the contract entered between complainant no.1 and the OPs, as per doctrineprivity of Contractand the common law of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it and the premise is that only parties to contracts should be able to sue to enforce their rights or claim damages as such. In this regard we can read againwhat consumer means under C.P. Act, 2019
consumer”means any person Who-
- Buys any goods for a consideration which has been paid or promised partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person , but does not include a person who obtains such goods for resale or for any commercial purpose,
In light of the said definition made out in the C.P. Act , 2019, the argument made by the Ld. Advocate for the OP3 has no leg to stand.
Ld. Advocate for the OPs 1 & 2 submitted that OP1 is authorized service center of OP3 and OP2 is the Employee of the OP1. As such both the OPs are bound to work / act under the instruction of OP3 and their role is confined merely to act as a forwarding agency for the defective/damaged products received by them for forwarding to the office of the OP3 who is the Warranty Obligator for Apple India and the same is stated on the public website of Apple Inc. We found logic in this submission.
Ld. Advocate for the complainant submitted that the iPhone in dispute was switched off from 13/08/2016 to 15/08/2016 and on 16/08/2018 after switching on the said phone a black spot was seen on the left corner of the display screen. In thisregard Ld. Advocate for the OP3 alleged that the Service Report dated 29/08/2016 depict that disputed device has hardware issues and multiple dents were found in the said device which is evident that disputed device was not used in a genuine way it might have fallen a lot of times due to which the device’s hardware is severely damaged. Photocopy of the Service Report dated 29/08/2016 reveals that-
MICRO INSPECTION REQUIRED, USER LEVEL MARKS &SCRATCHS, THE DEVICE MAY BE MAY NOT BE RETURNED IN THE SAME CONDITION IF ANY HARDWARE ISSUE, PHYSICAL DAMAGE OF TRACE OF LIQUID FOUND IN IT. Multiple dents at the edges.
Another photocopy of the Diagnosis Details of the said iPhone in the Service Report dated 22/09/2016 shows that-
Hardware issue other than display confirmed.
Therefore mishandling of the said iPhone as alleged by the OP3 cannot be ruled out. Moreover, without any occurrence one fine morninga black spotappeared on the display screen of the said iPhone is hard to believe.
Ld. Advocate for the complainants alleged that despite the said iPhone was under warranty coverage, Ops 1 & 2 demanded extra charge for repairing of the said device. Denying this allegation made by the complainants Ld. Advocate for the OP3 submitted that the complainant(s) mishandled disputed device due to which disputed device is beyond purview of the Warranty Terms and Conditions. Photocopy of the Warranty Terms & Conditions of the said device furnished by the OP3 goes to show that-
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, 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 damage 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 (e.g, by presenting proof of purchase).
Thus, an amount of Rs.13,500/- was charged for repair works of the said disputed device which was duly refunded to the complainants by the OPs. It is also noticed that Service report dated 22/09/2016 issued by the OP1 clearly mentioned that Exchange price offered to the complainants, but they were not interested. Hence the said device returned to them as it was.
On perusal of the record it is found that complainants have no answers to the several questions put by the OPs 1 and 2 which were very relevant to this dispute, such as-
- Whether the complainants have any proof to support of their claim pertaining to the device having been switched off on 13th to 14th august 2016.
- Whether they have any evidence to prove that problem of black spot on the left hand top corner of the display screen in the said device did not crop up owing to their induced efforts.
- Whether they have any proof that on 16/08/2016 a number of calls and correspondence were made to the OP4 to solve the problem yielded no result.
- Whether they have any evidenceto prove that on 05/09/2016 OPs 1 & 2 called them to inform that owing to other defects in the said device the same was not repairable.
- Whether they have any evidence that OPs 1 & 2 had demanded Rs.27,900/- towards replacing the device.
Complainants replied all these queries by single word No.
In view of the above discussion we are of the opinion that neither deficiency in service nor unfair trade practice from the end of the OPs are there in the instant Consumer Complaint. Thus complainants have miserably failed to establish their case.
As such the complaint case fails.
Hence,
ORDERED
That the case be and the same is dismissed on contest against the OPs without any cost.
