Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.252/2016
Sh. Sandeep Midha (since deceased) through his LRs:-
(i) Smt. Vandana Rani Midha w/o Late Sh. Sandeep Midha
R/o C-29, 2nd Floor, Kirti Nagar, Ramesh Nagar,
Delhi-110015
(ii) Smt. Renu Midha w/o Sh. K. K. Midha
R/o C-29, 2nd Floor, Kirti Nagar, Ramesh Nagar,
Delhi-110015
(iii) Km. Pihu Midha-(Minor daughter)
R/o C-29, 2nd Floor, Kirti Nagar, Ramesh Nagar,
West Delhi, Delhi-110015
[through her mother (i) above].
(iv) Km. Sarvi Midha-(Minor daughter)
R/o C-29, 2nd Floor, Kirti Nagar, Ramesh Nagar,
West Delhi, Delhi-110015
[through her mother (i) above]. …Complainant
Versus
OP1-M/s Vaishno Electronics Pvt. Ltd.
131, MCD Market, Karol Bagh,
New Delhi-110005.
OP2- Apps Daily Solutions Pvt. Ltd.
(previously - Onwards Mobility Solutions Pvt. Ltd.)
D-3137-39, Oberoi Garden Estates,
Chandivali Farm Road, Andheri (East),
Mumbai-400072.
OP3- M/s Apple India Pvt. Ltd.
19th Floor, Concorde Tower “C”, UB City No. 24,
VittalMallya Road, Banglore-560001 (Karnataka) ...Opposite Parties
Date of filing: 05.07.2016
Date of Order: 12.01.2024
Coram: Shri InderJeet Singh, President
Ms.Shahina, Member -Female
Shahina, Member
ORDER
1.1. (Case of complainant)–The complainant filed the present complaint u/s 12 of the Consumer Protection Act,1986 against the OPs namely - M/s Vaishno Electronics Private Limited (in short OP1- Seller), Apps Daily Solutions Private Limited (in short OP2- Insurer), M/s. Apple India Private Limited (in short OP3- Manufacturer) by alleging the deficiency in services.
1.2. The complaint was filed on 05.07.2016. He purchased an Apple I- Phone Model 6S 128 GB bearing IMEI No.3554130 7150 9190 (in brief I-phone) for a sum of Rs.74500/- against invoice no.48050 (on record), from OP1. The I-Phone set was sold to the complainant by representing to be manufactured by Apple Inc. Infinite Loop Cupertino CA95014, USA and marketed in India through the OP3 and all the standard guarantees and warranties of the manufacturer were extended.
1.3. The complainant got the insurance of the said mobile phone from OP2 on recommendation of OP1. However, the OP2 was available at the showroom of the OP1 and he paid a sum of Rs.3,999/- for insurance cover for I-phone in favour of the complainant, [bearing serial no. DUP Plus-2608468 and scratched Code 4ec75VH3wJ and covering all risks, including risk against theft, burglary, physical damage etc].
1.4 On 21.02 2016 said I –Phone set was physically damaged due to sudden falling/ slipping by the complainant and it stopped working. The complainant reported the damage of phone to the service centre of OP2 at Janakpuri, New Delhi on 24.02 2016 and also delivered the damaged I-Phone set against Job Sheet (Intimation ID NO.ADI 210216 297 6940) and he also paid a sum of Rs.500/-against service charges [Annexure C-3].
The complainant states that the service centre of OP2 had given an assurance that they shall get the damaged set replaced from the OP3. Thereafter, the complainant deposited a further sum of Rs.7,434/-in order to get the replacement of the damaged I-Phone set [being by way of depreciation and policy excess amount; e-mail dated 4.3.2016 is Annexure C-4]. The amount was deposited on 08/03/2016 in favour of M/S R. B. Trading through bank transfer as per instruction of OP-2 [Annexure C-5].
1.5 The complainant alleges that after receiving the amount by OP-2 on account of insurance cover of his I-Phone set. Service charges and I-phone replacement charges, the P2 failed to fulfil its commitments and also delayed the matter despite repeated requests and demands of the complainant.
1.6 On 25.04.2016 the complainant was shocked to learn from OP-2 that the insurance claim of the complainant was rejected on the ground that the new I-Phone set purchased by the complainant was already a replaced-set, against which no further replacement would be allowed under the insurance cover and the OP-3 had declined the replacement of the damaged I-Phone set on this sole ground.
Then OP-2 returned the damaged I-phone set to the complainant and also insisted the complainant to receive its delivery from the courier [being e-mail dated 18.4.2016 as Annexure -C-6], which the complainant strongly protested through return email dated -20/04/2016 [Annexure C-7 being response of OP2’s e-mail].
1.7 The OP1 had sold old I-Phone set to the complainant as a brand new set and failed to take another new set in replacement from the OP-3 despite requests. The complainant had also requested to OPs to explain the reasons of rejection of the insurance claim of complainant, so as to enable him to sort out the matter with the concerned OP, but none of them sorted out the genuine grievance of complainant despite receiving the payment by OP1 & OP2 on account of insurance and I- Phone set price. Such conduct, acts and omissions on the part of OPs amount to deficiency in service besides causing financial losses to complainant, which resulted into mental pain and agony to complainant. The complainant had also sent a legal notice dated 12.05.2016 to OPs [Annexure C-8, its Postal Receipts along with delivery proof is Annexure C-9].
1.8 The Complainant seeks directions against OPs for replacing the hand set I-Phone of the complainant or in the alternative refund the cost of the hand set of Rs. 74,500/- insurance premium amount and service charges (Rs. 3,999/- + Rs. 500/- + Rs. 7,437/- = Rs. 11,933/-) along with interest @ of 18% from the date of complaint and further to pay Rs. 50,000/- on account of harassment caused to the complaint.
1.9 The opposite parties were sent notices to the complaint, the OP-2 cause appearance through its AR on 16.09.2016, but after filing the authorization, it failed to appear. The OP 3 also failed to appear despite service. The OP2 and the OP3 were proceeded ex-parte on 08.12.2016 for want of appearance.
However, the OP3 had sought setting aside the ex-parte order dated 08.12.2016 before Hon’ble State Commission, the request of OP3 was allowed by order dated 22.12.2017 and OP3 was directed to file written statement subject to payment of cost Rs. 7,000/- to the complainant. The OP3 had filed the written statement. Thus, the written statement is of OP1 and OP3.
1.10 The complainant died during pending of complaint and application for LRs was allowed, their names were impleaded as mentioned in the array of parties.
2.1 (Case of OPs)- In reply of OP1 has not denied that the complainant had purchased an Apple I-phone for a total sum of Rs. 74,500/-. The OP1 has not denied that the I-phone set sold to the complainant was represented to be manufactured by Apple Inc. Infinite Loop Cupertino, CA 95014, USA and marketed in India though the OP3 and the product sold to the complainant carried all the standard guarantees and warranties of the manufactured. OP1 has denied rest of the allegations made in the complaint. OP1 has stated that the shop of OP1 was having three family members as sales personnel standing in the said shop along with the stock thereby having no space even to sit throughout the working hours of the day, thus how any employee can be accommodated in the said shop. The complainant in good faith agreed to buy an insurance policy offered by OP1 of OP2 by paying Rs. 3,999/- as a premium amount and OP2 provided necessary insurance cover of I-phone in favour of complainant bearing serial number DUP PLUS-2608468 and scratched code 4ec75bh3wj and covering all risks, including risk against theft, burglary, physical damage etc. The OP1 had no concern with the OP2. OP1 further stated that the I-phone set sold to the complainant was a brand new set and was not a set taken in replacement from the OP3 at any stage, this fact was easily verifiable from the EMEI number of the hand set and the EMEI number mentioned on the outer box. Had the said set sold by the OP1 was a replaced one, then two EMEI numbers could not be same because the company does not provide any such outer box of the replaced handset. OP1 denies that the complainant had approached the OP1 for any complaint regarding the denial of the claim by the OP2. It is further denies claim of the price paid by him for purchase of the I-phone set, insurance premium, amounts paid subsequently besides loss and damages to the tune of Rs. 50,000/- towards mental agony and harassment, OP1 has no role with the present controversy and the complainant grossly failed to show how there is any deficiency in service against the OP1 as alleged in the present complaint; no question of arises for compensation to be imposed upon the OP1. The complainant failed to file service proof to show that the legal notice was served upon the OP1. There is no cause of action ever since arisen against the OP1.
2.2 The OP3, in its reply claims that OP1 is not an authorized re-seller of the OP3. The OP2 had provided insurance cover for the device/I-phone, and offered remedy in accordance with the Apple One (1) year limited warranty. The complainant in paragraph -7 of his complaint accepts that the device fell/slipped from him, which was caused physical damage to the I-phone, thus it was beyond the warranty terms and conditions. The complainant had already approached OP1 & OP2 several times but they refused to help him and the insurance claim has been rejected. The OP2 had also called upon complainant to pay sum of Rs. 7,434/- for replacement of the damaged I-phone. However, his device was neither repaired nor replaced. OP2 rejected the insurance claim on the grounds that the OP3 had already replaced the I-phone earlier and they cannot replaced it once again. The complainant approached OP1 regarding the disputed device but the OP1said that the I-Phone set was a brand new handset but it was not taken from OP3 at any stage. The OP3 has no role for so called allegations of denying of services or harassing him or anything whatsoever. The OP1and the OP2 have failed to repair/replace the device as per the terms and conditions of the insurance policy. Since the I-phone was physically damaged by the complainant himself, it is not covered under the warranty by OP3; he had neither visited any AASP nor submitted any service report. OP3 cannot be held liable for non-performance of duty by the OP1and the OP2 or for any other person. Therefore, the complainant is not entitled to claim compensation from OP3. The complainant has no cause of action and complaint deserves to be dismissed.
3.1 (Replication of complainant to the W.S of OP1) –Complainant denies that the present complaint is mala-fide to extort money from the OP1. Complainant submits that in the MCD Market, Karol Bagh, New Delhi, the shops and showrooms were small in size but high in its value. Complainant is not aware about the exact business arrangement between the OP1 and the OP2 but at the relevant time, the representative of the OP2 had already been available at the business place of the OP1 and the complainant took the insurance cover from OP2 for his I-phone only upon the advices of the OP1. Complainant further states that the insurance claim of the complainant was rejected on the ground that the I- phone set was already a replaced set and not a brand new set as alleged by the OP1, for which OP1 ought to have taken up the matter with the OP2 & the OP3 to protect the interest of the complainant. The complainant denied that he had never approached the OP1 for redress of his grievances. Even a legal notice dated 12.05.2016 was served was not responded OPs including OP1. It is reiterated that the complainant is entitled for relief claimed. The complaint is reiterated and reaffirmed.
3.2 The complainant did not file rejoinder to the reply of OP3 duly recorded in the proceedings dated 07.05.2018.
4.1 (Evidence)- The complainant Sh. Sandeep Midha led his affidavit of evidence, it is replica of complaint & documents.
4.2 OP3 also led its evidence by filing Affidavit of Sh. Priyesh Poovanna, Country Legal Counsel, Apple India Limited and its evidence on the basis of the written statement with documents.
4.3 No evidence was led on behalf of OP1 despite opportunities. OP2 is already ex-parte.
5. (Final hearing)-. The complainant and the OPs failed to file written arguments. The Parties were given opportunity to make oral submissions, therefore, Sh. Rishi Sharma, Advocate for complainant/LRs presented oral submissions.
6. (Findings)- In view of the material of evidence including documentary record, the facts established are that complainant had purchased I-phone for a sum of Rs. 74,500/- from seller/OP1 and he took the insurance policy from the OP2 against all risks including its theft, damage etc, by paying insurance premium of Rs. 3,999/- on recommendation of the OP1. When the complainant’s I-phone set physically damaged then he approached to the OP2’s service centre for repairs of damaged phone and he had further paid a sum of Rs. 7,434/- + Rs. 500/- for replacement and service charges. However, the OP2 failed to fulfil its comments and delayed the matter and rejected on the ground that I-phone set purchased by complainant was already replaced and OP3 could not made another replacement of the said mobile phone as per terms and conditions. Moreover, the complainant never purchased the I-phone from nor approached to the OP3. OP1 is not an authorised vendor of OP3 and OP3 has no concern with the OP1 & the OP2. There is no evidence or documentary proof or otherwise by the OP1 that it was first hand new brand I-Phone sold to the complainant. Since OP1 had sold the used/already replaced I-phone to the complainant, for which OP2/Insurer and OP3/manufacturer cannot be blamed for. This establishes unfair trade practice and deficiency of service against OP1exclusively. OP1 is liable to return the price of I-Phone to complainant besides the insurance amount of Rs.11,923/-, since the complainant suffered insurance premium amount to insure the I-phone, had it been known to the complainant and OP2, the I-phone would not have been insured.
The complainant claims interest amount at the rate of the date of filing the complaint, and compensation of Rs.50,000/-.Whereas, there is no agreed rate of interest, therefore, at the rate of interest 4%pa from the date of filing the complaint till realization of the amount of Rs.74500/- is determined and allowed in favour of the complainant and against the OP1. So far compensation is concerned, the reasons for claim of the compensation of Rs.50,000/-is not explained., However the compensation should be reasonable to the situation, therefore, the compensation is determined as Rs.22,000/- in favour of the complainant against OP1, in lieu of sufferings, harassment, other trauma, mental agony faced and suffering of services charges etc.
7. Accordingly, the complaint is allowed in favour of the complainant against the OP1 (M/s Vaishno Electronics Pvt. Ltd.) while directing OP1 to refund Rs. 74,500/- along with interest @ 4% pa from the date of complaint till its realisation of the amount besides to return insurance premium amount of Rs.11,933/- & sum of Rs. 22,000/- as compensation. OP1 is further directed to pay the above amount within 45 days from the date of receipt of this order, failing which the rate of interest will be 6% pa (instead of 4%) on amount of Rs. 74,500/-. However, the complainant will also be liable to return the subject I-phone set to the OP1 under acknowledgment.
8. The complaint against OP2 and OP3 is dismissed. No order as to costs.
9. Announced this order on 12.01.2024.
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[InderJeet Singh]
President
[ Shahina] Member (Female)
