Chandigarh

DF-II

CC/211/2019

Krishan Kumar - Complainant(s)

Versus

Appario Retail Private Limited - Opp.Party(s)

Narinder Singh Adv.

24 Feb 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	211/2019
Date of Institution	:	05.04.2019
Date of Decision	:	24.02.2021

 

                                       

                       

 

Krishan Kumar s/ o Late Sh. Sundar Lal, Resident of House No. 23, Near Government Nursery, Chandigarh.

….Complainant

Versus

1.     Appario Retail Private Limited, KH No.18/21, 19/25. 34/5,6,7/1 min, 14/2/2 min, 15/1 min, 27, 35//17, 8, 9/1, 10/1, 10/2, 11 min, 12, 13, Jamalpur, Gurgaon Haryana (122503)

 

Address Appario Retail Private Limited, WB 10/11, Renaissanace Logistic Park, Near Village Padgha, Off. NH-3, Taluka Bhiwadi, District Thane, Thane, Maharashtra (421302).

 

2.     Amazon.in having its Registered Office at Brigade Gateway, 8th Floor, 13/1, Dr.Rajkumar Road, Malleshwaram (W), Bangalore - 560055 through General Manager.

 

3.     Apple Iphone Service Centre, Ground Floor, SCO 315-316, 2nd Floor, Sector 35-B, Chandigarh (Through General Manager).

…. Opposite Parties

BEFORE:
		SHRI RAJAN DEWAN,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Narinder Singh, Adv. for complainant
	OP No.1 exparte.
	Sh.Yugansh Siwach, Adv. for OP No.2.
	None for OP No.3.

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainant are that  he ordered for a mobile phone make iphone 6 from the official application of amazon.in on 12.10.2018 for Rs.18,999/-, which was received on 16.10.2018. After one week of its usage, the same started giving problem as it gets automatically off sometimes and sometimes its camera opened automatically and its touch button were not working properly. He visited the service center i.e. OP No.3 who stated that all issues were on account of software issue and suggested him to update the software through wi fi to get rid of all these issues. Accordingly, he updated the software but still the problems are the same even after updating the software, the phone gets more slow and started creating problems. He intimated the problems to amazon.in through email dated 12.10.2018 who replied that the mobile phone was purchased in October, 2018 and return window was expired on October 25, 2018 and once the return window is expired, system does not allow them to take any action on the order. OP No.2 advised him to contact the manufacturer or the service center and they will honour the warranty from the date of its purchase.   It has further been averred that he had already visited the service center of the apple.inc but they are not able to solve the issue. Finally, he got served a legal notice dated 14.01.2019 through registered post upon the OPs but to no effect.  Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.   
2.         Notice sent for the service of OP No.1 was received back with the report of refusal. Since refusal was good service, and none appeared on behalf of the Opposite Party on the date fixed, therefore vide order dated 16.05.2019, it was proceeded against exparte. 
3.         In its written statement, OP No.2 has stated that it provides an online marketplace where independent third party sellers list their products for sale and therefore, the sellers themselves are responsible for their respective listings and products on the website. It has further been stated that the product is neither sold nor manufactured by it and therefore in the absence of any cause of action against it, the complaint is liable to be dismissed qua it. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
4.         In its separate written statement, OP No.3 took various preliminary objections regarding the maintainability of the complaint and that the complainant has intentionally and willingly tried to hide information from this Commission and the complaint has been filed to mislead the Commission. It has further been pleaded that the complainant has not attached any service report/job card with the instant complaint which is made as mandatory with any one visiting OP No.3, which clearly shows his mala fide intentions.  It has further been pleaded that the complainant never visited OP No.3 nor any job card id was generated in his name and he has intentionally not mentioned the IMEI number in the complaint.  It has further been pleaded that OP No.3 is only the service provider of Apple India Pvt. Ltd. which is not even made a proper and necessary party to the complaint. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.
5.         The complainant filed separate rejoinders to the written reply of OP No.2 & 3 controverting their stand and reiterating the averments as made in the complaint.
6.         We have heard the Counsel for the contesting parties and have gone through the documents on record and the written submissions of the complainant.
7.         After going through the rival submissions of the parties and the evidence on record, we are of the considered view that the complaint is liable to be accepted for the reasons stated hereinafter. In the instant case, the complainant has averred that the mobile phone in question started giving problems soon after its purchase and as such he approached the service center of the iphone i.e. OP No.3 but this plea of the complainant has been denied by OP No.3 in its written version by stating that no job card/sheet has been placed on record.   However, from the copy of the email dated 04.01.2019 written by the complainant to OP No.1 and the legal notice dated 14.01.2019 served upon the OPs, it is evident that he informed the OPs regarding the defects in the mobile phone and made a request to them to refund the cost of the mobile phone i.e. Rs.18,999/-. The said legal notice was duly received by the OPs but they did not take any effective step to redress the grievance of the complainant despite the fact that the mobile phone started giving problems within the warranty period, which itself amount to deficiency in service on their part. Hence, the plea of OP No.3 that the complainant never approached them regarding the defects in the mobile phone stands rejected.
8.         However, from the perusal of the complaint, it seems that the complainant is more inclined towards replacement of the mobile phone than its repairs. However, the law on the point is well settled that if the defect(s) can be set right by repair/replacement of part(s), there is no need to replace the machine as a whole.  Otherwise also, the complainant has not placed on record any document whereby it can be proved that there was some inherent manufacturing defect in the mobile set in question.  As such, we are of the view that the complainant cannot be granted the relief of replacement of the mobile set at this stage.  Nevertheless, there is no denying fact that the mobile phone in question started giving problems within the warranty period, therefore, the opposite parties are bound to repair it. 
9.         In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly allowed. The OPs are directed as under :-
   1. To repair the mobile set in question, free of cost.
   2. To pay Rs.2,100/- as compensation for mental agony and harassment caused to the complainant
   3. To pay Rs.5,000/- as costs of litigation.
10.           This order be complied with by the OPs, within 45 days from the date of receipt of its certified copy, failing which the awarded amounts shall carry interest @ 9% per annum from the date of this order till its actual payment besides compliance of other directions.
11.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 24/02/2021	Sd/- (RAJAN DEWAN) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER