Complaints filed on: 10-11-2023

                                                      Disposed on: 30-09-2024

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

+

DATED THIS THE  30^th DAY OF SEPTEMBER 2024

::P R E S E N T::

   SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, ….....PRESIDENT         

  SMT.NIVEDITA RAVISH, B.A., L.L.B. (Spl).,.. .LADY MEMBER

CONSUMER COMPLAINT No. 159/2023

       Sri. Shivananda    

       S/o. Jalegowda,  

       Aged about 49 years,

       Ramenahalli Village,  

       Hebbur Hobli, Tumakuru Taluk,

      Tumkuru District.  

……….Complainant

      (Sri. C.S.Bettegowda, Advocate.,)

V/s

1. The Managing Director,

(Virat Bhatia) Apple Company,

Apple Soket, F-11, Street City Walk,

District Centre, New Delhi-110 019.

(Shri.T.N.Ajay, Advocate)

2. M/s. Apple Main Branch Company,

Apple BKC, G-1,G-2, Jio Ward Drive,

Bandrakuymar Complex, Mumbai-400 051.

3. Apple Bengaluru Branch,

The Phone Store, KHB Colony,

4. N.T.Communications,

Sri. Gangadhareshwara Palace Complex,

Tumakuru Road, Kunigal, Tumakuru Dist.

(Mobile No.9743572220, E.Mail-shekarns48@gmail.com)

5. F1-Infor Solutions & Service Pvt Ltd,

Shop No.1, Saleh Centre, Before SIGMA Mall,

Behind Executive Chamber, Bengaluru,

        (Opposite Parties No.2 to 5  Absent)

                                              ::O R D E R ::

SMT.NIVEDITA RAVISH, LADY MEMBER

          This complaint filed by the complainant Under Section 35 of Consumer Protection Act, 2019 against the opposite parties to direct them to pay the amount, paid by the complainant through EMI with interest and to pay the compensation of Rs.2,00,000-00 to the complainant towards mental agony and harassment given by the opposite parties or in the alternative to supply new phone to the complainant.              

2.   The 1^st opposite party is The Managing Director (Virat Bhatia) Apple Company, New Delhi (herein after called as OP.No.1). 2^nd opposite party is M/s. Apple Main Branch Company, Mumbai (herein after called as OP.No.2). 3^rd opposite party is the Branch of Apple Company (herein after called as OP.No.3). 4^th opposite party is Seller of the Apple Phones (herein after called as OP.No.4) and 5^th opposite party is the Authorized Service Centre of the Apple Phones (herein other called as OP.No.5).

3.       It is the case of the complainant that, the complainant has purchased I-Phone-14 Apple (128GB) Starlight, MPUR3HN/A, Sl.No.355 7944 25610-939 from the OP.No.4 on 15/05/2023 on the basis of depositing initial depot of Rs.1700-00 for the price of Rs.53,791.03 paise, with GST and SGST at 9% i.e., Rs.9683.56 paise in all a sum of Rs.74,900-00. The EMI was fixed for Rs.1700-00 and the complainant has paid three months EMI to the OP.No.4. The I-Phone purchased by the complainant was not get charge of battery, after one of purchase, then the complainant has contacted OP.No.4 and OP.No.4 has advised the complainant to approach the OP.No.5 for service. The OP.No.5 has received the I-phone from the complainant, issued the Job card and orally intimated that charge pin was damaged. Further OP.No.5 has said that the pin has to be removed and to insert new charger pin, for which the complainant has to pay Rs.63,000-00. The OP.No.5 has demanding the amount more than the price of the I-Phone for inserting new pin. When the complainant has enquired regarding the act of the OP.No.5, the OP.No.5 has advised to approach the OP.No.1 to 3 for further enquiry or replacement of I-Phone or repayment of the value of the phone. The I-phone sold by the OP.No.4, was not working properly within a month of purchasing and though the I-Phone is in warranty period, an amount more than the price of the I-phone was fixed by the OP.No.3 for inserting a new pin. The complainant got issued legal notice on 27/09/2023. The legal notices were served to OP.No.1 and 4 and remaining OPs, the notices were returned back. In spite of it, the all ops have not comply with the said legal notice, nor issued any reply notice. Hence, this compliant.  

4.  After issuing the notice by this Commission, OP.No.2 to 5 are not appeared before the Commission and remained absent. The OP.No.1 appeared before this Commission through their counsel and filed version.

5.   In the version, the OP.No.1 has submitted that the complainant not made the ‘Apple India Private Limited as opposite party. However, has just made ‘Managing Director, Virat Bhatia. Apple Company and      M/s.Apple Main Branch Company as OP.No.1 and 2 respectively. Further submitted that Apple India transacts strictly on a ‘Principal to Principal’ basis with independent resellers and service providers and consequently has no control over any of the liabilities and or obligation(s) that independent resellers and service providers have with their customers or other third parties. Further submitted that One        Giri Gowda approached the OP.No.5 complaining about ‘charging issue’ in I-Phone 14, 128G.B. starlight bearing serial No.XTKQWKX7MV. Upon receipt of the I-Phone technicians in the job sheet Remarks as “Display scratches and usage marks”. Subsequently OP.No.5 connected the I-Phone with good adapters and cables but they found that device was not charging. Accordingly, the I-phone was sent to Apple Centre of Apple India, located at Bangalore for further diagnosis and Repair centre of Apple India inspected the internal condition and found damage caused to the charging pins in the charging port of the I-Phone which amounts to accidental damage and the same is not eligible for in warranty service as per the Apple warranty and the same was informed to one Giri Gowda through OP.No.5. Despite being aware of the damage caused to the charging port, intentionally Giri Gowda denied availing the offer presented to him by the Op.No.5. Therefore the device returned to      Giri Gowda on 9-9-2023 and the complainant not made the Giri Gowda as a necessary party to the complainant. Hence prayed for the dismissed of the complaint.

6.   Complainant filed his affidavit evidence with Twenty Two (22) documents. Which are marked as Ex.C-1 to Ex.C-22. One                    Sri. Sandeep Karinkar, the legal counsel and duly authorized representative of  Apple India Pvt Ltd has files affidavit evidence on behalf of the OP.No.1 with 6 (six) documents.  Which are marked as    Ex. OP No1-1 to Ex.OP No.1-6.

7.   We have heard the arguments of the counsel for the complainant and peruse the written arguments filed by the both complainant and OP.No.1 and points would arise for determination as follows:-

          1) Whether the complainant proves deficiency in service on the

              part of OPs.1 to 5?

        2)  Is complainant is entitled to the relief sought for?

8.        Our findings on the aforesaid points are as under:

Point No.1: In the Partly Affirmative.     

Point No.2: As per final order for the below

:R E A S O N S:

 9.Point No.1 &2 :-

         The counsel for the complainant has argued that, the complainant purchased I Phone-14 Apple (128GB) starlight from OP.No.4 on 15/05/2023 on the basis of depositing initial depot of Rs.1700-00. To prove the same the complainant has produced Ex.C-1/copy of Tax Invoice issued by the OP.No.4. The Ex.C-1 reflecting the name              of the complainant, invoice No.6298, date:14/05/2023. Description of Gods: I-Phone-14 Apple (128GB) starlight, MPUR3H N/S SL.NO.355794423610939 Amount Rs.53,792.01 CGST %9-Rs.484.28 SGST % 9 Rs.4841.28, Grand Total 18% - Rs.74,900-00. Further the Ex.C-1 reflecting that, the complainant has purchased the I-Phone in the mode of loan.  Further counsel for the complainant has argued that the EMI has fixed for Rs.1700-00 and the complainant has paid three months EMI to the Op.No.4. Ex.C-2 is reflecting that Rs.3163 + 163      x 24 months –June 2^nd. Further the complainant produced Ex.C-16/copy of repayment schedule, which is reflecting that the complainant has availed the loan from BAJAJ FINESRVU Branch, Kunigal K.R. COMPLAINANT”s name. Agreement No.08PRDP 38759173. Agreement Date: 14/05/2023, Loan Amount Rs.74,900-00. Tenure (in months) 24, EMI: 3121. Further counsel for the complainant  has argued that the I-Phone purchased  by the complainant  was not get charge of battery, after one of purchase, then the complainant has contacted OP.No.4, for which the OP.No.4 has advised the complainant to approach OP.No.5.  The OP.No.5 received the I-Phone, issued the  Job Card on 06/09/2023, but not serviced the I-Phone. To prove the same the complainant has produced Ex.C-2/copy of the job sheet. Ex.C-2 is establishing that, the job sheet issued by the OP.No.5, by reflecting the address of the OP.No.5. Further Ex.C-2 reflecting case ID No.BLR 2309065238113, RECEIVED DATE:06/09/2023. Customer Name:      Giri Gowda, Brand: Apple product Description: I-Phone 14, warranty status: under warranty Job sheet remarks: “Customer Reported Not getting charge, need to check visual/Mechanical Inspection and Macro Inspection, data not committed, for diagnose 2 days if any hardware issue persist and part replacement will take  one week. Display scratches and usage marks”.

10.   Further counsel for the complainant has contended that, the OP.No.5 has orally intimated the complainant that the charge pin is damaged and the said pin has to be removed and to insert new charger pin, for which the complainant has to pay Rs.63,000-00. To prove the same the complainant has produced Ex.C-15/CD of the audio and submitted that there is audio conversation in the Ex.C-15 between complainant and OP.No.5 and conversation between OP.No.4 and OP.No.5. In which the OP.No.5 has stating that, the price of the repair is amounts to cost of new phone. The same Ex.C-15 was not objected by the OP.No.1 or other OPs. Further counsel for the complainant has argued that, the complainant has approached OP.No.1 to 3 for replacement of I-Phone or repayment of value of the phone as per advice of the OP.No.5. Because the OP.No.5 has told that price of inserting new charges pin has been fixed by the OP.No.3. Further counsel for the complainant has argued that the OP.No.4 has sold the damaged I-phone, manufactured by OP.No.1 to 3. Though the I-phone is in warranty period, the OP.No.5 has not repaired the I- phone freely and demanded the cost to repair more than the price of the I-phone. The complainant issued legal notice to all OPs. But the legal notices served only to OP.No.1 and 4 and the remaining notices sent were returned. To prove the same the complainant  has produced Ex.C-4/copy of legal notice, Ex.C-5 to Ex.C-9/receipts of RPAD, Ex.C-10/copy of postal track,   Ex.C-11 to Ex.C-13/returned legal notices issued to OP.No.2, OP.No.5, OP.No.3 respectively and Ex.C-14/postal acknowledgement, Ex.C-4  to Ex.C-9  establishing that the complainant  has sent legal notice to the all OPs. Ex.C-10 and Ex.C-14 proves that the legal notice received by OP.No.1 and 4. Further Ex.C-11 to C-13 proves that the legal notices issued to OP.No.2,5 and 3 were returned to the complainant.

11.   Per contra, counsel for OP.No.1 has contended that the complainant not made Apple India Private Limited as opposite party in the complaint. However, has just made ‘Managing Director, Virat Bhatra, Apple Company and ‘M/s. Apple Main Branch Company’ as OP.No.1 and 2 respectively. But OP.No.1 has received the legal notice issued by the complainant, notice issued by this Commission with same address as mentioned by the complainant. Hence it is confirmed that name as Apple Company and Apple India Private Limited are one and the same.  Further counsel for the OP.No.1 has argued that the complainant has not purchased I-phone from OP.No.1, the complainant only purchase the       I-phone from OP.No.4 and complainant not paid any consideration amount to the OP.No.1.  But Ex.C-1 is explaining that the complainant has purchased the I- phone manufactured by the OP.No.1. Ex.C-2 also establishing that the I- phone of the complainant is Apple brand. When any customer purchased goods from the seller, some portion of the profit goes to the dealers, manufactures of the particular goods. Therefore the some portion of consideration given to the OP.No.4 is definitely has been gone to the OP.No.1. As per  Ex.C-1 the complainant purchased the I-phone of  OP.No.1’s Company on loan and Ex.C-16, Ex.C-17, establishing that the complainant paid the installment amount for the loan and OP.No.4 has not denied the payment made by the complainant. Hence it is considered that the complainant is the consumer against the OP.No.1.

12.   Further counsel for the OP.No.1  has argued that, actual user of the subject I- phone  is not the complainant and documents like the job sheet and Service Delivery Challan reflecting that one Giri Gowda  approached the OP.No.5 reporting issues that he is facing with the           I- phone and not the complainant. Further the complainant not made the Giri Gowda, as a necessary party to the complainant. Ex.OP No1-1/copy of job sheet, Ex.OP.No1-3/copy of service delivery challan by the OP.No.1  and  Ex.C-2 produced by the complainant are reflecting the customer name as a Giri Gowda. But Ex.OP NO.1-3 is reflecting product configuration I-phone-14, Row 128GB, starlight, which is purchased by the complainant as per Ex.C-1. Further counsel for the complainant has filed written argument and given the clarification on 09/08/2024 regarding one Giri Gowda, as the Giri Gowda is the brother of the complainant and complainant sent the mobile for service through his brother. Giri Gowda. Hence it is considered that, the I-phone sent to OP.No.5 was pertaining to the complainant. In the same time the OP.No.1 has not taken any steps to prove that the I-phone given to the OP.No.5 for repair was not pertaining to the complainant. Further counsel for the OP.No.1 has argued that when one Giri Gowda approached OP.No.5 for servicing the I-phone, upon receipt of the         I- phone, technicians in the job sheet remarks as “Display scratches and usage marks” and Subsequently, OP.No.5 connected the I-phone with good adapters and cables but that found that device was not charging. Further counsel for OP.No.1 has contended that the I- phone was sent to Apple Repair Centre of OP.No.1, inspected the internal condition and found damage caused to the charging pins in the charging port of the      I-phone which amounts to accidental damage and the same is not eligible for in warranty service as per point (b) and (d) of ‘warranty does not apply’ in the Apple warranty. To prove the same the OP.No.1 has produced Ex.OP No.1-1/copy of job sheet, Ex.OP No.1-2/photo of charger point. Ex.OP No1-3/service delivery challan, Ex.OP             No.1-4/product service summary, Ex.OP No.1-5/copy of Apple one (1) year limited warranty.  

13.  On perusing Ex.OP NO.1-1, it is reflecting as “Display scratches and usages marks” in the job sheet remarks. The Ex.OP No.1-1 has not remarks about accidental damage to the charger pin. Further on perusing Ex.OP No.1-2/photo of the charging  point is not clearly visible and it is not establishing that the accidental damage was caused by the complainant and it is also not establishing that the but it is the photo  pertaining to the I-phone of the complainant, which was given by his brother Giri Gowda to the OP.No.5. The Ex.OP No.1-5 is reflecting point (b) and (d) about for which  the warranty does not apply as “ (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”: (d) to damage caused  by accident, abuse, misuse, fire, liquid, earthquake or other external cause:” and            Ex.OP No.1-4  is reflecting that the product of the complainant/I- phone of the complainant is not working correctly because it has accidental damage and it is out of warranty repair.  But the OP.No.1 has not placed any evidence or documents to prove that the accidental damage to the charger pin was caused by the complainant or third party, by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause. When the OP.No.1 has alleging that there is accidental damage in charger pin, the burden to prove the same lies only on Op.No.1, not on complainant. The OP.No.1 has relied upon the case of Kumari Namratha Singh V/s. Manager, Indus decided on 06/08/2012 and the case of      Tata Motors Ltd V/s. Deepak Gouyal and others reported in 2015(1) CPJ 607, (NC), held by the Hon’ble National Commission, New Delhi and  submitted that’ there is necessary of expert opinion to prove the manufacturing defect. But as per Ex.OP No.1-5, the complainant’s         I-phone is having 1 year warranty. As per Ex.C-1 the complainant purchased I- phone on 14/05/2023 and as per  Ex. C-2 the complainant given the I- phone for service on 06/09/2023 i.e., within 5 months of purchasing the I-phone. Therefore, the defect was arised in the               I-phone within the 5 months of purchasing. Complainant’s regarding working conditions of the I-phone itself shows that there is some problem in the I-phone and to rectify the problems, the OP demanded Rs.63,000-00. The OPs are admitted that the fact that, the I-phone is not working correctly. Hence expert opinion is not necessary. It is the duty of OP.No.5 to give free service to I-phone of the complainant which is in the warranty period. As per Ex.OP No.1-4 the service centre of the OP.No.1 has asked the complainant to pay for an out of warranty repair. The OP.No.1 has himself submitted that the Apple care service is the repair centre of the OP.No.1. Hence the act of the OP.No.1 and OP.No.5, not repairing the I-phone of the complainant freely amounts to deficiency in service on the part of the OP.No.1 and 5. The complainant has filed statement of loan account with memo on 16/04/2024. The same copy of loan account reflecting that the name of the complainant, loan amount of Rs.74,900-00 loan disbursal date 14^th May 2023. Last installment due date 2^nd June 2025 and installment summary as on       26^th March 2024 is reflecting that, the complainant has totally paid Rs.28,089-00 for a loan. But Ex.C-1 is the reflecting that amount for I phone is Rs.53,792.01 paise, CGST: Rs.4841.28, SGST Rs.4841.28. Therefore it is added totally as Rs.63,474.57 and rounded off to Rs.63,475.00. OP.No.2 and 3 are the branches of the OP.No.1 and OP No 4 is the seller of I phone of OP No.1 and OP No.5 is service centre of the OP No.1. Hence being the branches, seller, service centre of OP No.1, the OP.No.2 to 5 are also liable to repay the price of the I phone of the complainant. The OP No.1 to 5 are liable to repay the only actual price of the I-phone, not the interest on the loan for purchasing the          I-phone. Hence OP No. 1 to 5 have jointly and severally liable to repay the  price of the I-phone i.e., Rs.63,475-00 to the complainant with interest  @ 8% p.a. from 10/11/2023 (i.e., date of complaint) till realization by receiving the I- phone of the complainant i.e., I- phone-14 Apple (128GB) starlight, MPUR3HN/A.SL.NO.355-794423610939 purchased on 14/05/2023. The complainant has prayed Rs.2,00,000-00 as a compensation towards mental agony and harassment. But the complainant has not produced any document to show that he was eligible for compensation of Rs.2,00,000-00.  Considering the mental agony of the complainant, the OP.No.1 to 5 were jointly and severally liable to pay Rs.8,000-00 as compensation. Further OP.No.1 to 5 are compelled the complainant to approach this Commission. Hence OP.No.1 to 5 are jointly and severely liable to pay litigation cost of Rs.8,000-00 to the complainant. Accordingly, we proceed to pass the following:-

                                                 ::O R D E R::

The complaint filed by the complainant is partly allowed with cost.

It is directed the OP No 1 to 5 shall jointly and severally repay an amount of Rs.63,475-00 to the complainant with interest @ 8% p.a. from 10/11/2023 (i.e., date of the complaint) till realization by receiving the Apple I- phone from the complainant.

Further it is directed that, OP.No.1 to 5 have jointly and severally pay the compensation of Rs.8,000-00 and litigation cost of Rs.8,000-00 to the complainant.

Further it is directed that the OP.No.1 to 5 are jointly and severally comply the above order within the 45 days from the date of the receipt/acknowledge of the above order.