This complaint u/s 35 of C.P. Act., 2019 was initially filed against Opposite Party (O.P.) 1) The Branch Manager, Macintel Solutions, Siliguri, The Authorised Service Centre of Apple, Panitanki More, H/493/1/533/438, Shop No. 14 International Market, Sevoke Road, P.S.- Bhaktinagar, P.O.- Sevoke Road, Dist.- Jalpaiguri, Pin Code- 734001, West Bengal and 2) AM Mobile Telecom Private Limited, Shop No.- 04, Cosmos Mall, 1^st Floor, 2^nd Mile, Sevok Road, P.O.- Sevok Road, P.S.- Bhaktinagar Dist.- Jalpaiguri- 734001 who contested the case by filing Written Version seperately.

The case of the complainant as per his complaint is as follows-       

The complainant argued in his plaint that on 20/03/2022 he purchased a Apple I Phone 13 Pro Max 256 GB being IMEI No. 357884545969400 by paying a sum of Rs. 1, 39, 900/- (Rupees One Lakh Thirty Nine Thousands and Nine Hundred) only from AM Mobile Telecom Pvt. Ltd., located at Bhaktinagar, Jalpaiguri, Pin Code- 734001 and against the said payment the AM Mobile Telecom Pvt. Ltd. issued an invoice being No. 362, dated 20/03/2022 to the complainant. The complainant also argued that on 03/09/2022 he noticed that the back cover of the said mobile was broken and after noticing the complainant immediately visited the O.P. for repairing the same but without any enquiry the O.P. informed the complainant that the damage of the said mobile caused due to physical pressure which did not fall under the warranty and also demanded Rs. 47, 000/- (Rupees Forty Seven Thousand) only for repairing from the complainant. The complainant also argued that after that he sent a legal notice to the O.P. and requested them to repairer the said mobile without cost but on 25/11/2022 the O.P. sent an e-mail to the complainant and rejected his request by saying that the physical damage did not fall under the warranty. The complainant also added that since purchasing he did not apply/ give any external pressure on his said mobile phone and handled it very carefully and without conducting any enquiry the O.P. came to the conclusion that damage was a physical damage and rejected his claim when the said damage came under the warranty policy.           

The complainant therefore prays for-

1. Pass an order directing the O.P. to pay Rs. 1, 39, 900/- (Rupees One Lakh Thirty Nine Thousands and Nine Hundred) only of the claim amount of the complainant.
2. Pass an order directing the O.P. to pay damages of Rs. 50, 000/- (Rupees Fifty Thousand) only for agony, shock and sufferance sustained by the complainant.
3. Interest pendent lite.
4. Cost of the case.
5. Total value of claim amounting to Rs. 1, 89, 000 /- (Rupees One Lakh Eighty Nine Thousand and Nine Hundred) only.

List of documents furnished by the complainant are as follows-

1. Photocopy of Invoice being No. 362, dated 20/03/2022.
2. Photocopy of notice.
3. Photocopy of Postal Receipt along with the Track Report.
4. Photocopy of e-mail.

The O.P. No. 1) The Branch Manager, Macintel Solutions, Siliguri, The Authorised Service Centre of Apple, Panitanki More, H/493/1/533/438, Shop No. 14 International Market, Sevoke Road, P.S.- Bhaktinagar, P.O.- Sevoke Road, Dist.- Jalpaiguri, Pin Code- 734001, West Bengal and the O.P. No. 2) AM Mobile Telecom Private Limited, Shop No.- 04, Cosmos Mall, 1^st Floor, 2^nd Mile, Sevok Road, P.O.- Sevok Road, P.S.- Bhaktinagar Dist.- Jalpaiguri- 734001 who contested the case by filing Written Version (W.V.) separately and as per their W.V. the case is as follows –

The O.P. No.1 denied all the statement of the complaint made by the complainant and argued in his W.V. that the complainant demanded for free repairing of his broken mobile which was beyond the terms and conditions and in this regard the O.P. No.1 intimated this in the reply of the legal notice sent by the complainant. The O.P. No.1 also added that no case of defect in goods and/ or deficiency in service had been made out by the complainant so as to justify filing of this complaint and the complaint was absolutely not maintainable and was liable to be dismissed and also there was no cause of action against the sole O.P. No.1. The O.P. No.1 also argued that the complainant made wild allegation to get refund of the entire amount of the said mobile phone without giving any justification and hence, this complaint should be dismissed with exemplary cost and to pass such order and/ or orders as the Hon’ble Commission deem fit and proper.

The documents filed by the O.P. No.1 is as follows-

1. Copy of the Apple one year limited warranty. (X-1)
2. Copy of the e- mail, dated 25/12/2022. (X-2)

The O.P. No.2 also denied all the statement of the complaint made by the complainant and argued in his W.V. that it was totally false that on 26/03/2022 the complainant purchased a mobile phone from the O.P. No.2 being namely I Phone 13 Pro Max 256 GB being IMEI No. 35788454-5969400 by paying Rs. 1, 39, 900/- (Rupees One Lakh Thirty Nine Thousand Nine Hundred) only. The O.P. No.2 also argued that the O.P. No.2 is a Mobile shop and authorized retail under the name and style of O.P. No.1, i.e., AM Mobile Telecom Private Limited, and sales mobile phones and on 20/03/2022, the O.P. No.2 sold the alleged mobile phone vide invoice no. 362 to the complainant but O.P. No.2 did not sale any mobile to the complainant on 26/03/2022. The O.P. No.2 added that on 20/03/2022 when the complainant purchased the alleged I Phone 13 Pro Max 256 GB and the complainant himself un-box said mobile phone and after proper verification the complainant purchased the said mobile phone. The O.P. No.2 also added that after proper inspection and after completion of full physical verification the O.P. No.2 handed over the said mobile phone to the complainant and after selling the alleged mobile phone by the O.P. No.2 to the complainant, the after sale service and the warranty and guarantee regarding the alleged mobile phone would be provided by the authorized service centre, i.e., the O.P. No.1. The O.P. No.2 argued that they handed over the alleged mobile phone to the complainant in good and well condition and there was not a single scratch and crack in the alleged mobile phone and after purchasing the aforesaid alleged mobile phone, the complainant used the said mobile phone without any disturbance since 20/03/2022 but on 03/09/2022 when the complainant noticed that the back cover of the alleged phone was broken, he did not inform the said matter to the O.P. No.2. The O.P. No.2 also added that due to the negligent use of the alleged mobile phone by the complainant, the back cover of the alleged mobile phone had been broken and for the aforesaid reason the O.P. No.2 was not liable by any means.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?           

Decision with reason:-

            All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and written version filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in the jurisdiction of Jalpaiguri and thus there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

From the above discussion it is very much clear that there is no dispute that the complainant purchased a mobile phone from the O.P. No.2 and the said mobile phone was under the coverage of warranty period, i.e., the said mobile phone was purchased on 20/03/2022 and the dispute arose on 03/09/2022 and from the warranty policy filed by the O.P. No.1 it is not disputed that the said mobile phone was under the warranty coverage.

In his defense, the O.P. No.1 stated that as per terms and conditions of the policy, any kind of physical damage is not cover under the standard warranty and the O.P. No.1 further claimed that a physical damage was found on the said mobile phone and that’s why it will not come under the warranty coverage. In this point, the Commission does not interfere to evaluate the terms and conditions of the policy but in this case, the Commission pays light on whether the O.P. deliver proper services to his customer or not.

The O.P. No.1 in his letter dated 25/11/2022 stated that “upon conducting the visual mechanical inspection of the said device a physical damage was found” and deficiency of service has started from this point. It is expected that any mechanical examination of any device should be done by a mechanical expert and there should be a detail report of examination of the device. But in this case, the O.P. No.1 was not filed any mechanical report prepared by a qualified mechanical expert to show that the device was physically damaged due to the mishandling by the customer. Only visualizing the device and came to the conclusion that the device was physically damaged due to the mishandling by the customer is not sufficient and correct. Further that, there was an opportunity of the O.P. No.1 to produce an expert opinion or file expert evidence to defend that the device was physically damaged due to the mishandling by the customer. Merely submission that the device was physically damaged due to the mishandling by the customer is not a sufficient ground of the defense. A customer always buys a product from a reputed company like Apple with an expectation of delivery of a good quality of product and services as well as better offerings from the company but in this instant case the O.P. No.1 failed to deliver its best services to his customer. It is fact that the said device was under the coverage of one year warranty period and in this case the O.P. No.1 did not produce any evidence or expert report to establish that the damage was not occurred due to any other mechanical reason. In this context, it was the duty of the O.P. No.1 to supply a detail mechanical report to his customer after proper examination the said mobile phone thoroughly by a qualified expert and it is not correct that only visualizing the device and repudiate the claim.

In this instant case, the O.P. No.2 is the principle opposite party as because the O.P. No.2 sold the said mobile phone to the complainant. So, it is the duty of the O.P. No.2 to provide a proper service to his consumer. But it is clear from the evidence that there was deficiency of service in the part of O.P. No.1 because being an authorized showroom of the company, it was the duty of the O.P. No.2 to satisfy his customer by providing a good and proper after sale service. But in this case, the O.P. No.2 did not provide a good and proper service to his customer and hence, the O.P. No.2 is liable in this instant case.   

 So, as per the above discussion it is very much clear that there was a deficiency of service from the part of O.P. No.2 and this Commission has no doubt that there was a deficiency of services from the part of the O.P. No.2. The O.P. No.2 (AM Mobile Telecom Private Limited) is directed to repair the said mobile within 30 (Thirty) days from the date of this order failing which the complainant is entitled to get an amount of Rs. 1,39,900/- (Rupees One Lakh Thirty Nine Thousands and Nine Hundred) only with a simple interest @ 6% per annum from the date of filing of this case, i.e., from 27/12/2022.            

Hence, it is,

ORDERED

            That the Consumer Case No. 108/2022 be and same is allowed in contest against the O.P. No.2 (AM Mobile Telecom Private Limited). In this instance case, the O.P. No.2 is liable. 

The O.P. No.2 is directed to repair the said mobile within 30 (Thirty) days from the date of this order failing which the complainant is entitled to get an amount of Rs. 1,39,900/- (Rupees One Lakh Thirty Nine Thousands and Nine Hundred) only with a simple interest @ 6% per annum from the date of filing of this case. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for mental pain and agony and Rs. 5,000/- (Rupees Five Thousand) only for litigation cost and the O.P. No.2 is also directed to deposit Rs. 2,000/- (Rupees Two Thousand) only to Consumer Legal Aid Account of this Commission. 

          Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.