DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday 18^th day of  January 2024

CC.447/2015

Complainant

            Niranj

S/o Late. Ravindran,

Residing at 1-4761,

Maviladath House,

Bilathikulam Road,

            Nadakkavu,

Calicut -673 011.

Opposite Parties

1.            The proprietor,

3G Mobile World,

Sobha Centre,

Mavoor road, Near FLY Over,

                     Calicut – 4

(By Adv. Sri. Dilkhush. V.K)

Suppl  2.     Apple India Pvt Ltd,

           19^th floor, Concorde Tower,

‘C’ UB City,

No. 24, Vittal Malliyar Road,

Bangaloore, Karnataka -560001.

(By Advocates. M/s Srikala Krishnadas and Bindu. G)

Suppl  3.     The Manager,

B2X Service Solutions India Pvt Ltd,

Door No. 29/934B1,

Ground floor, Mundolly Building,

K.T Gopalan road,

Kottoli, Kozhikode -673014.

(By Adv. Sri. Pradeesh Mathew)

Suppl  4.      The Regional Manager,

New India Assurance Co. Ltd,

Grant Road Branch,Vakkaligara Bhavana Complex,

                     5^th Floor, Hudson Circle,

Corporation Rajaram Mohan Roy road,

Ashwam Nagar,

Sampangi Rama Nagar,

Bangalore, Karnataka- 5600027.

Suppl  5.     The Managing Director,

Apps Daily Solutions Pvt Ltd,

                     6^th Floor, “C” wing Estate,

Chandivali Farm Road,

Mumbai, Maharashtra- 400072.

(Suppl. OP2 to 5 were impleaded as per order in IA No. 339/2016 and IA No. 340/2016)

                                                 ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 7/03/2015 the complainant purchased an Apple iPhone 6 plus 64 GB silver: Apple: A- Mobiles 354380060640479 from the opposite party paying Rs. 70,000/-. As instructed by the opposite party, the complainant had insured the mobile handset with the New India Assurance Co. Ltd paying the insurance premium of Rs. 2,999/- to the opposite party, who had issued invoice dated 7/03/2015 for the same. The said iPhone was purchased by the complainant due to the assurance given by the sales executive of the opposite party that it was a newly launched phone and was the best available in the market and is highly durable since it was made using unbreakable gorilla glass. It was assured that the glass of the phone will not break. It was informed that the entire cost of the phone would be refunded in case of theft, burglary, physical damage including fluid damage as the same is insured.

3. On 21/8/2015 the iPhone of the complainant accidently fell down from his pocket to the ground and the glass was broken. The complainant then contacted the opposite party with the original bill and requested to refund the cost. But the opposite party failed to refund the cost despite insurance. The complainant believes that the opposite party had sold a substandard Apple iPhone to him. The act of the opposite party amounts to deficiency of service and unfair trade practice. The complainant has undergone much mental stress and agony due to the actions of the opposite party. Hence the complaint to direct the opposite party to refund the price of the iPhone amounting to Rs. 70,000/- along with Rs. 2,999/- collected towards insurance premium and Rs. 20,000/- as  compensation and also the cost of the proceedings.
4. The supplemental opposite parties 2 to 5 were impleaded as per order in IA No. 339/2016 and IA No. 340/2016.    
5. The opposite parties 1 to 4 have resisted the complaint by filing written version separately. The 5^th opposite party was set ex-parte.
6. The first opposite party has admitted that on 7/3/2015 the complainant had purchased iPhone 6 plus from their shop. But the allegation that it was as per the instruction of the first opposite party that the complainant had insured the mobile phone is not correct. The complainant at his own wish and will chose the additional payment of premium of Rs. 2,999/- for insuring the handset. The sales executive never forced or instructed the complainant to purchase a particular handset. Equally, the allegation that there was an assurance from the side of the first opposite party that the handset would not be broken is denied. The first opposite party is a sales point of Apple branded iPhone in Kozhikode. The manufacturer and the insurance company are not impleaded and so the complaint is bad for non-joinder of necessary parties. The first opposite party had never sold any substandard item to the complainant. No loss or mental agony was caused or occasioned to the complainant due to any act of the first opposite party and the complainant is not entitled to get any relief against them. With the above contentions, the first opposite party prays for dismissal of the complaint with costs.
7. The contentions of the second opposite party, in brief, are as follows; 

         The second opposite party does not give any sort of insurance on iPhone 6 plus 64 GB. It does not provide any insurance directly or indirectly through any other party on any of its products. Moreover, the products of the second opposite party do not come with any sort of gorilla glass. The opposite parties 1 and 4 have provided the insurance cover to the complainant and hence they only are liable to reimburse/compensate the complainant for the alleged loss. It is admitted by the complainant that the iPhone was damaged at the hands of the complainant himself and hence it is out of warranty. The allegation that the mobile handset was substandard is false and hence denied. The complainant never visited the second opposite party with any sort of complaint. There is no cause of action for the complaint. It is, therefore, prayed to dismiss the complaint with costs.

8. According to the third opposite party, the complainant has no case or claim against them and they are unnecessary party to the proceedings and the complaint as against them is liable to be dismissed.
9. The contention of the 4^th opposite party is that there was no deficiency of service on their part. The 4^th opposite party has issued the policy to Apps Daily Solutions Pvt LTD - vide package insurance policy No. 67010246142400000008, subject to the package insurance policy clauses attached therewith. There is no allegation against the 4^th opposite party in the complaint. The alleged damage has been caused due to the fault of the complainant, for which, the 4^th opposite party cannot be compelled to compensate. The complainant is raising manufacturing defect to the product alleging that the device sold to him was a substandard one, for which, the fourth opposite party is not liable. The 4^th opposite party is not liable to compensate either for the manufacturing defect or for the substandard item purchased. As per the terms and conditions of the policy, the insured has to intimate the incident immediately ie within a period not later than 48 hours. The complainant has violated this condition. The opposite party came to know the case only on 26/9/2016, when the notice was received from this Commission. The complainant has to inform the insurer or the third-party agent within 48 hours of the occurrence and submit the claim form along with necessary documents. But the complainant has failed to do so. The allegation is that the gorilla glass was broken, but the claim is for refund of the entire amount paid towards the price. The complaint is devoid of merits and it is liable to be dismissed with costs.
10. The points that arise for determination in this complaint are;

               1) Whether there was any deficiency of service on the part of the opposite parties, as alleged?

                      2) Reliefs and costs.

11. The evidence consists of the oral evidence of PW1 and Exts A1 to A3 on the side of the complainant. No oral evidence was let in by the opposite parties. Ext B1 was marked.
12. Point No 1:    The complainant has approached this Commission seeking an order for refund of the amount of Rs. 70,000/- spent by him for purchasing iPhone 6 plus 64 GB. An incidental  prayer is also made seeking compensation of Rs. 20,000/- for the loss, hardship and mental agony allegedly suffered by him and also refund of Rs. 2,999/- spent by him for payment of insurance premium, along with cost of the proceedings amounting to Rs. 5,000/-.
13. PW1 is none other than the complainant and he has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the invoice dated 7/03/2015 for an amount of Rs. 70,000/-. Ext A1 shows that the complainant had purchased iPhone 6 plus 64 GB from the first opposite party on 7/3/2015 paying Rs. 66,666.67/. Ext A2 is the copy of the invoice dated 7/3/2015 for an amount of Rs. 2,999/-.         Ext A2 was issued by the first opposite party and the amount of Rs. 2,999/- was collected as premium of Daily Assure plus Ultra Apps Daily: Insurance. Ext A3 is the copy of the mobile handset all risks insurance policy issued by the 4^th opposite party. Ext B1 is the copy of the policy produced by the 4^th opposite party.
14. It is not disputed that the complainant had purchased iPhone 6 plus 64 GB from the first opposite party on 7/03/2015. It is manufactured by the second opposite party. That Rs. 2,999/- was collected from the complainant on 7/03/2015 towards insurance premium by the first opposite party is not disputed. Ext A2 is issued by the first opposite party in their name and under their seal. That the 4^th opposite party had issued the policy to Apps Daily Solutions Pvt Ltd (5^th opposite party herein) vide Ext A1. It is not disputed. That on 21/08/2015 the mobile handset had accidently fell down from the pocket of the complainant and the glass was broken is not disputed.
15. Going by the averments in the complaint, it can be seen that the complainant has alleged that the iPhone sold to him was a substandard one. This is stoutly denied by the second opposite party, who is the manufacturer. On a careful consideration and scrutiny of the evidence in hand, it is seen that there is absolutely nothing to show that the mobile handset in question is having any inherent manufacturing defect. Even the complainant has no specific allegation in this regard. Apart from a vague averment made in the complaint and repeated in the proof affidavit, the complainant has no specific allegation as to any such manufacturing defect. It is for the complainant to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the mobile hand set suffered from any inherent manufacturing defect. But the complainant has failed to place on record any technical/expert report to support his allegation. Not even a single document has been placed on record in support of the contention that the mobile phone sold to him was a substandard one. The second opposite party has asserted that they do not provide any unbreakable gorilla glass for its iPhone 6 plus. Moreover, the second opposite party has not provided any insurance on the product. This is admitted by PW1 in the cross examination. The complainant admits having dropped his iPhone and damaged it and hence it is out of warranty as it was damaged by the complainant himself. Moreover, the complainant has never approached the second opposite party with any grievance. The complainant himself has admitted that the device is out of the warranty period. So, there is no cause of action against the second opposite party and no liability can be fastened against them.
16. Similarly, there is no allegation against the third opposite party and there is no claim against them. So, the third opposite party is also entitled to be exonerated.
17. As already stated, it is not disputed that the glass of the iPhone of the complainant was broken while it fell down on 21/8/2015. Ext A3 policy covers accidental external damage.  The policy is admitted. The premium for the policy was collected by the first opposite party. The policy was issued to the 5^th opposite party. PW1 has asserted that the insurance amount was collected by the first opposite party and he did not know anything about the insurance and it was the first opposite party who informed him about the insurance. Thus it is in evidence that the complainant has no direct dealing with the 4^th opposite party.  So the complainant cannot be blamed for not intimating the occurrence within 48 hours or submitting the claim form or documents in time. Admittedly, the 4^th opposite party has received the premium and issued the policy. Though the complainant is not entitled to claim Rs, 70,000/- paid by him towards the cost of the iPhone, he is entitled to get the cost of replacement of glass of the iPhone. The 1^st opposite party has filed a memo showing that the price of the glass of the iPhone would come around Rs. 2,000/- to Rs.3,000/-. This is not disputed by any of the parties. So the complainant is entitled to get Rs. 3,000/- towards the claim for replacement of the glass of the iPhone.
18. Undoubtedly, the complainant was put to gross mental agony and inconvenience due to the deficient service of the opposite parties 1,4 and 5, for which, he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 5,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 3,500/- as cost of the proceedings. The opposite parties 1, 4 and 5 are jointly and severally liable.
19. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                 a)  CC.447/2015 is allowed in part.

b) The opposite parties 1, 4 and 5 are hereby directed to pay a sum of Rs. 3,000/- (Rupees three thousand only) to the complainant towards cost of replacement of the glass of the iPhone.

c) The opposite parties 1, 4 and 5 are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as compensation to the complainant for the   mental agony and hardship suffered.   

d) The opposite parties 1, 4 and 5 are directed to pay a sum of Rs . 3,500/- (Rupees three thousand five hundred) as cost of the proceedings to the complainant.   

 e) The payment as afore stated shall be made within 30 days of the   receipt of copy of this order, failing which, the amount of Rs. 3,000/- shall carry an interest of 6% per annum from the date of this order till actual payment.

f) The opposite parties 2 and 3 are exonerated.

Pronounced in open Commission on this, the 18^th day of January, 2024.

Date of Filing: 22/08/2015

                                              Sd/-                                                    Sd/-                                                         Sd/-

                                     PRESIDENT                                        MEMBER                                               MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 -  Copy of the invoice dated 7/03/2015.

Ext A2 -  Copy of the invoice dated 7/3/2015.

Ext A3 -  Copy of the mobile handset all risks insurance policy issued by the 4^th

                 opposite party.

Exhibits for the Opposite Parties

Ext B1 - Copy of the policy produced by the 4^th opposite party.

Witnesses for the Complainant

PW1 -     Niranj.M (Complainant)

Witnesses for the opposite party

 Nil

                                           Sd/-                                                             Sd/-                                                  Sd/-

                                PRESIDENT                                                   MEMBER                                       MEMBER

True Copy,      

                                                                                                                                                      Sd/-

                                                       Assistant Registrar.