IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 22ndday of March, 2023.
Filed on 28.02.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.RSholy, B.A.L, LLB (Member)
CC/No.44/2022
between
Complainant:- Opposite parties:-
Sri.Anoop.P.T 1. Sri.A.K.Shaji
S/o Thomas Chairman and Managing Director
Kunninakam House My G, Corporate office, Mini Bypass
Mannanchery P.O. Puthiyathara, Kozhikode-673004
Alappuzha
(Adv.Linta Sebastian) 2. The Manager, My-G, Alappuzha-
Showroom, Alappuzha-688011
3. The Manager, My G Cherthala-
Showroom, Alappuzha-688524
4. Smt.Manju Warrier
Brand Ambassador, My G
(Adv.Millu Dandapani for all OPs)
O R D E R
SMT.P.R SHOLY (MEMBER)
This is a consumer complaint filed under Sec.35 of Consumer Protection Act,2019.
1. Material averments briefly discussed are as follows:-
Complainant who is a business man purchased an iphone 13 Pro Max latest model for Rs. 1,29,000/- from 3rd opposite party. The complainant was also compelled by the 3rd opposite party to take insurance of Rs. 12,499/- for the said phone from the showroom itself. It was also informed by 3rd opposite party that if any damage affected they can replace the product.
2. After two months of the purchase of the said phone it fell in the water and after that while using it, the same was heating very badly and the complainant had approached the 2nd opposite party on 10th February where they advised that it will be ready within two days and it was not so, approach 3rd opposite party after two days. The complainant waited for two days and the same heating problem was detected and he then went to 3rd opposite party where the staff of 3rd opposite party said that it was 92 days over and accordingly a depreciation amount of 35% is needed for repairing since the 15% of depreciation was only upto the 90th day. It was then only realized the complainant that the 2nd opposite party advised to approach the 3rd opposite party after two days is for increasing the depreciation amount which would be Rs. 40,857/-. It was only because of being attracted by the advertisement seen in television by 4th opposite party the complainant purchased the said phone. The complainant has used the said mobile phone having a total cost of Rs. 1,43,000/- including the amount for insurance of the opposite parties and thereafter on detecting the complaint the 2nd opposite party willfully delayed the days and accordingly the depreciation amount became increased upto 35% which amounts to deficiency in service and unfair trade practice on the side of opposite parties. Hence filed this complaint for refund of cost of the said Apple iphone 13 Pro Max of Rs. 1,43,000/- along with interest @ 12% and Rs. 1,00,000/- as compensation from opposite parties.
3. In response to the complaint the opposite parties 1 to 3 are filed version as follows:-
The complaint is frivolous and is based entirely on unsubstantiated grounds. The 1st opposite party is a very prominent and popular retail brand involved in the business of sales and service of electric goods and gadgets across the State of Kerala for the past 14 years. 2nd and 3rd opposite parties are its manager at showrooms/ sales outlets at Alappuzha and Cherthala respectively. The opposite parties are providing quality products and rendered services to its customers properly.
4. The complainant had purchased an iphone 13 Pro Max from 3rd opposite party for Rs. 1,29,000/- on 13/11/2021 and voluntarily availed the benefit of a special gadget protection plan “GDOT Protection Plus” from opposite parties by paying an amount of Rs. 12,090/- valid for 1 year from the date of purchase after convincing its terms and conditions. It is not an insurance plan as alleged by the complainant. The said protection plan takes care of damages/repairs for a period of 1 year from the date of purchase of the electronic products and the same offers a protection plan beyond the scope of warranty offered by manufacturer, subject to certain terms and conditions.
5. On 10/2/2022 (noted as 10/12/2022) the complainant approached the 2nd opposite party for purchasing a mobile charging cable and reported a suspicion of overheating due to water damage. Since it could not find any heating issue on preliminary inspection, the complainant was advised to bring all the supporting documents for detailed examination of the phone. Then the complainant left the 2nd opposite party shop promising to return along with supporting documents, if the issue still persists.
6. Thereafter in a gap of few days the complainant visited the 3rd opposite party with the required documents. Since it was not detected the heating issue, the staff of 3rd opposite party informed that the phone needs to be checked in detail by the authorized service centre of Apple and requested the complainant to hand over his mobile phone and supporting documents. The staff of 3rd opposite party also informed the complainant that since 90 days are over form the date of purchase, a depreciation cost of 35% would be applicable as per the terms and conditions of the protection plan, if any repairs need to be done. Then the complainant shouted at the staff and stated that he had visited the 2nd opposite party store some days before and it was as instructed from the 2nd opposite party that he went back etc. Noticing the said matter the 3rd opposite party promised to the complainant that if the complainant had reported the issue with 2nd opposite party before 90 days period, he would be given the benefit and only 15 % deduction would be applicable with the confirmation from 2nd opposite party. On requesting to hand over the mobile phone the complainant again shouted at the manager and other staff of 3rd opposite party and refused to hand over his mobile phone and left the store.
7. On next day after obtaining the confirmation from 2nd opposite party, the 3rd opposite party informed the complainant that his phone can be repaired on 15% deduction as per the terms of the protection plan by giving him the benefit of within 90 days period. However, the complainant demanded that he need free replacement for his mobile and he is not ready for any repairs at the time. The complainant has not purposefully handed over his mobile phone for servicing with ulterior motives. The 2nd opposite party has not advised the complainant to approach 3rd opposite party after 2 days. The averment that the mobile phone is having heating problem is yet to be confirmed by the authorized service centre of Apple. The complainant has not been persuaded by any of the advertisements of the opposite parties as alleged. In fact, the brand Apple needs no persuation as it is a globally accepted brand. The opposite parties did not promised to replace the phone, if any damage occurs. The complainant was very well aware of the terms and conditions of the protection plan. There was no deficiency in service on the part of opposite parties. Hence the complaint may be dismissed.
8. 4th opposite party filed version as follows:-
The facts and averments of the complainant are ambiguous, baseless and without any conclusive proof. This complaint filed with a view to tarnish the name, image and reputation of 4th opposite party. This opposite party has no role in the alleged sale transaction between the complainant and the other opposite parties. This opposite party has appeared in the advertisement of 1st opposite party as per of sale promotion. But that doesn’t mean that this opposite party has any personal responsibility with respect to individual sale transaction. The complainant being a purchaser is duty bound to purchase goods which will satisfy his interest and accordingly he has to make his selection of goods of his choice. The purchaser is under a duty “Let the Buyer Beware” and there is no direct or indirect contact between 4th opposite party and the complainant. Hence the 4th opposite party has no personal liability in the said transactions. This opposite party never solicit business from individual purchasers for the 1st opposite party. Therefore 4th opposite party is an unnecessary and improper party in this proceedings.
9. 4th opposite party has not induced the complainant to buy any electronic goods from 1st opposite party nor made any false promises as alleged. This opposite party has not canvassed any person to buy any specific electronic goods of the brand Apple through any of her advertisements. This opposite party, being the brand ambassador of 1st opposite party have acted in commercials of the 1st opposite party. However, the 4th opposite party had not incited the complainant to buy consumer electronics from the 1st opposite party through various medias. Hence it is prayed that this opposite party may be deleted from the party array and also may be dismissed the complaint.
10. On the above pleading following points were raised for consideration :-
1. Whether there is any deficiency in service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to refund the cost of mobile phone as prayed for?
3. Whether the complainant is entitled to get compensation as prayed for?
4. Reliefs and costs?
11. Evidence in this case consists of the oral evidence of PW1 and PW2 and Ext.A1 and A2 on the side of the complainant and oral evidence of RW1 on the side of opposite parties. Expert commission report marked as Ext.C1.
12. Point No 1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 and Ext.A2.
13. PW2 is the Expert commissioner who inspected the disputed mobile phone and prepared report which is marked as Ext.C1. It is reported that the disputed mobile phone was heating in normal conditions and it is due to defect of hardware.
RW1 is the Business Manager of 3rd opposite party Branch, Cherthala. He filed an affidavit in tune with the version.
14. As per Ext.A1, Tax invoice dtd. 13/11/2021 the complainant purchased an Apple I Phone 13 Pro Max 128 GB from 3rd opposite party M/s My G Cherthala Branch for a total amount of Rs. 1,43,379/- which includes a protection plan named GDOT Protection Plus @ of Rs. 10,245.76/-. As per Ext.A2 the rate of the said package is Rs. 12,090/- and the warranty is for one year. After two months of the purchase while the PW1 was using the said phone, it fell in the water and after that while using it the same was heating very badly and the matter was informed to 2nd opposite party on 10/2/2022 and where they advised the complainant that it would be ready within 2 days and if it was not so, approach the 3rd opposite party after two days.
15. Thereafter the complainant wait for two days and the same heating problem was persisted and he approached to the 3rd opposite party where the staff of 3rd opposite party informed that it was then 92 days over and as per the protection plan the depreciation amount @ 35% is to be paid for repairing. Then only the complainant understood that the 2nd opposite party advised the complainant to approach the 3rd opposite party after two days, it was for increasing the depreciation amount from 15% being the rate for upto 90 days. The complainant also alleged that he had purchased the said phone attracting the advertisement seen in the television promotes by 4th opposite party. According to the complainant the said phone was used only for a short period from its purchase and the opposite parties did not comply the assurance made at the time of purchase that if any damages affected they can replace the product and on the contrary they were asking for 35% of depreciation amount for its repairing . Hence this complaint filed for replacing the disputed mobile phone and for compensation for mental agony. Opposite parties 1 to 3 are jointly filed version admitting the purchase of the disputed mobile phone and according to them the complainant voluntarily opted the protection plan for the gadget knowing the terms and conditions of the same. The said protection plan is offered by the opposite parties beyond the scope of warranty offered by manufacturer subject to some terms and conditions.
16. According to these opposite parties the complainant approached the 2nd opposite party on 10/2/2022 (wrongly written as 10/12/2022 in version) for purchasing a mobile charging cable. On that day itself he reported a suspicion of overheating of the said mobile due to water damage. Since they found no defects on preliminary inspection advised him to produce the phone with supporting documents for a detailed examination of the gadget. Thereafter, in a gap of few days the complainant visited 3rd opposite party with required document and then also no heating issue as alleged by the complainant was detected. At that time the staff of the 3rd opposite party informed to the complainant to handover the device and supporting documents for the purpose examining in detail and also informed that since 90 days are over after the date of purchase a depreciation cost of 35% would be applicable as per the terms and conditions of the protection plan, if any repairs need to be done. Knowing the said fact the complainant informed the 3rd opposite party that some days before he went to 2nd opposite party and it was instructed from them to approach 3rd opposite party after two days. He also quarreled with 3rd opposite party and went back. Knowing the same 3rd opposite party promised to the complainant that if the complainant had reported the issue with the 2nd opposite party before 90 days period, he would be given the benefit and only 15% deduction would be applicable with confirmation of 2nd opposite party regarding the reporting stated above. Thereafter on getting the confirmation form 2nd opposite party the 3rd opposite party informed the complainant that his phone can be repaired on 15% deduction by giving him the benefit of within 90 days period. However the complainant demanded replacement of his phone and he was not ready for any repairs at that time.
17. 4th opposite party also contended that she is having no role in the alleged sale transaction between the complainant and the other opposite parties. She appeared in the advertisement of 1st opposite party as part of sales promotion and has no personal responsibility with respect to individual sale transaction. 4th opposite party has not induced the complainant to buy any particular electronic goods of the brand Apple from 1st opposite party nor made any false promises.
18. Complainant got examined as PW1 and marked Ext.A1 and A2. The business manager of the 3rd opposite party was examined as RW1. The expert commissioner who had inspected the disputed mobile phone was examined as PW2 and the report prepared by him marked as Ext.C1. Admittedly the complaint of the mobile phone was reported with the 2nd opposite party on 10/2/2022 (though it was written in version that on 10/12/2022) ie, at the brim time of 90 days from the date of purchase of the said mobile phone. Accordingly the opposite parties 1 to 3 might have rectify the said phone as per the item No. 1 of Annexure 1 of Ext.A2 ie, within the period of 0-90 @ 15% depreciation. On the other hand as directed by the 2nd opposite party there occurred a delay for contacting 3rd opposite party. Thereafter it was informed that the phone can only be repaired under 2nd schedule of the table in Annexure 1 which will come a depreciation of 35%. Hence according to the complainant the act of the opposite parties amounts to deficiency in service and unfair trade practice and he is liable to get the phone replaced and also entitled for compensation.
19. The fact that PW1 purchased the mobile phone on 13/11/2021 by spending Rs. 1,43,000/- from 3rd opposite party is not in dispute since it proved by Ext.A1 tax invoice. Admittedly the said product is having a special protection plan named GDOT PROTECTION PLUS (GDP PLUS) from M/s MyG/3G Digital world for 1 year from the date of purchase of the product. According to the PW1 the phone became defective within the said period of one year protection plan and he produced the same before 2nd opposite party on 10/2/2022. The complainant reported by the PW1 is heating issues of the mobile phone which is also consensus with Ext.C1 report prepared by PW2. Though the counsel appearing for the opposite parties disputed the method of examination of the diagnosis of heating issues of the mobile phone, it was reiterated by PW2 during cross examination that the heating issues of the mobile phone can diagnosed with physical touching of the phone and he could realized the same on examination even stand by condition of the said phone. He also deposed that he is holding diploma in computer and Electronics having 12 years experience. During cross examination also he deposed that the Apple products are serviced with experience and he had done it above 100 phones of same model of the disputed Apple iphone. The evidence in Ext.C1 coupled with the deposition of PW2 it is revealed that the disputed phone affected complaints. Instead of removing the said complaints in time the opposite parties 1 to 3 played a tactics for delaying the production of said phone intending to make financial benefit to them which caused much mental agony to the complainant and also resulted filing of this complaint. More over it is to be noted that a person purchase a product with the hope of its life expectancy and not for a shot span of time. The complaint within a very short time will cause much mental agony and stress to the purchaser of loosing such a huge amount as cost of the product. In the said circumstances we are of the opinion that the complainant is entitled get repair of the disputed mobile phone with free of cost. The complainant is also entitled to compensation and we limit it as Rs.10,000/-. These points are answered accordingly.
20. Point No. 4:-
In the result complaint stands allowed in part.
a) Opposite parties 1 to 3 are directed to repair the mobile phone of the complainant free of cost (Apple iphone 13 Pro Max 128GB –IMEI 350381397205774) within one month of receipt of this order.
b) Opposite parties 1 to 3 are directed to pay Rs. 10,000/- as compensation to the complainant jointly and severally.
c) Complainant is allowed to realize an amount of Rs. 3000/- as cost from the opposite parties jointly and severally.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 22nd day of March,2023.
Sd/-Sholy.P.R (Member)
Sd/-Sri.S.SanthoshKumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Anoop P.T(Complainant)
PW2 - Sri.Sabeeh.H (Commissioner)
Ext.A1 - Tax Invoice dtd.13.11.2021
Ext.A2 - Copy of the insurance dtd.13.11.2021
Ext.C1 - Commission report
Evidence of the opposite parties:
RW1 - Sri.Akhil Sabju (Witness)
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
