DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 45 of 20-02-2019

Decided on : 30-07-2019

Capt. Abhinav Vatsa S/o Sh. Bidya Nath Jha, R/o Qtr. No. P653/D, Faridkot Military Station, Faridkot 151 203 (Punjab)

…...Complainant

Versus

1. Apple India Private Limited, 19^th Floor, Concorde Tower C, UB City No. 24 Vittal Mallya Road, Balgalore 560001

2. B2X Service Solutions India Private Limited, City Centre Mal, Shop No. 6, Ground Floor, Civil Ines, Bathinda (Punjab)

3. B2X Service Solutions India Private Limited, Shop No. 8, Ground Floor, The Celebration Mall, Batala Road, Amritsar 143001. (deleted vide order dated 21-2-2019)

4. B2X Care Solutions GMBH, Rosenheimer Str. 145 D, 81671 Munich, Germany. (deleted vide order dated 21-2-2019)

5. Apple South Asia Pte Ltd., 7 ANGMO Kio Street 64, Singapore 569086 (deleted vide order dated 21-2-2019)

6. Apple, One Apple Park Way, Cupertino, CA 95014, California , Unita States of America (deleted vide order dated 21-2-2019)

7. SK Retail Ventures, SCO 5,Ground Floor, Phase 1, Market Dugri, Ludhiana 141 001 (Punjab) (deleted vide order dated 21-2-2019)

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa, President

Smt. Manisha Member

Present :

For the complainant : Sh. Naresh Garg, Advocate, proxy counsel.

For the opposite parties : Sh. B L Sachdeva, Advocate, for OP No. 1

Sh. Lalit Garg, Advocate, for OP No. 2.

Opposite parties No. 3 to 7 deleted.

O R D E R

M. P. Singh Pahwa, President

1. Capt. Abhinav Vatsa, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Apple India Pvt. Ltd., and others ( here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that on 27-01-2018, he purchased an Apple iPhone 7 (128 GB, Black colour) bearing IMEI No. 355301081325584 from opposite party No. 7 for an amount of Rs. 59,500/-. The iPhone begun developing issue with its battery capacity. Therefore, on 07-06-2018, the complainant took his iPhone to opposite party No. 2. The opposite party No. 2 repaired the iPhone and returned it back on 17-06-2018. The complainant noticed that touch panel of his iPhone was replaced. The iPhone was in working condition, hence he accepted the same. On 08-10-2018, again the complainant deposited his iPhone with opposite party No. 3 as it had issues of battery drainage and minor heating. While submitting iPhone, the complainant was informed by technicians that two pentalobe screws were missing on the lower end of the phone. The complainant stated to the technician that the screws might be missing from the previous servicing done by the opposite party No. 2 on 07-06-2018, as it is impossible for an end user to perform such deep inspection of the phone while collecting it back. The complainant further stated that his iPhone is still under warranty and under no circumstances, he would get his iPhone serviced from third party. Then, the technician verbally confirmed that since the inner adhesive lining inside Apple iPhone 7 for water resistant property is found to be intact, the said iPhone would not have been opened externally. Thereafter, the complainant submitted his iPhone for the second time. Again the complainant had to deposit his iPhone with the opposite party. He was compelled to buy another mobile phone. He bought "Redmi 6 Pro (Black, 32 GB)' at cost of Rs. 10,998/- On 13-10-2018, complainant got a call from opposite party 3, informing that his iPhone has been found to be tampered externally, due to which opposite parties have declared his iPhone Beyond Economic Repair (BER) and denied any further servicing. The complainant escalated the case on Apple Support toll free number 0008001009009 and got his case registered vide case ID 100641471155. On 15-10-2018, the complainant got a call from the opposite parties stating the reason for refusal of providing service. The reason for the same was stated as "some sort of tampering has been found inside phone, which is not authorized by Apple. Therefore, the opposite parties declared his iPhone as Beyond Economic Repair (BER) and offered him a replacement at a charge. On 20-10-2018, the complainant approached opposite party 3 to take back his iPhone. On preliminary inspection of the iPhone, he found that the touch feature of his iPhone was not working at all. He immediately refused to collect his iPhone because at the time of submission, touch feature of his iPhone was working (also mentioned in the job-sheet), and iPhone was being returned in a worse state than the state in which it was submitted. The complainant made a strong protest keeping in view the fact that he had given a working iPhone to the opposite parties and they assured him of quality service. Subsequently, after few days, the opposite parties denied any repair stating that his iPhone has been tampered externally and returned the iPhone which was not in the working condition. The complainant escalated the case on Apple Support with previous case ID 100041471155. After a period of two weeks on 01-11-2018, he got a call from the opposite parties revealing that they cannot repair the damages that has been caused to his iPhone. The opposite parties also told the complainant that if he does not collect his iPhone before 8-11-2018, his iPhone would be sent to some warehouse and it will never be returned. Because of this threat, on 10-11-2018, complainant, unwillingly, collected his iPhone from opposite party.

3. It is alleged that all the opposite parties have been deficient in providing proper services and have harassed the complainant. They have also adopted unfair trade practice. The complainant has prayed for refund of Rs. 59,500/- being cost of iPhone; Rs. 10,998/- towards cost of new phone; compensation of Rs. 1,00,000/- for harassment and Rs. 1,00,000/-for mental agony and physical harassment besides Rs. 25,000/- as litigation expenses. These amounts are claimed with interest @24% p.a. Hence, this complaint.

4. In view of statement of learned counsel for the complainant, names of opposite parties No. 3 to 7 were deleted.

5. Notice to opposite parties No. 1 & 2 were issued. The opposite parties appeared through their respective counsel and contested the complaint by filing written reply.

6. The opposite party No. 1 in its written reply made preliminary submissions that the contentions and averments made by complainant are patently false, vexatious, devoid of any merits and made with malafide intention to harass opposite party No. 1. The complainant intentionally seeks undue benefits and unjust enrichment by making patently false and unsubstantiated claims against the opposite parties. He is guilty of materially concealing vital facts and approached this Forum with unclean hands . The complaint is abuse of due process of law. It is liable to be dismissed.

7. Thereafter opposite party No. 1 raised preliminary objections that when consumers cause damage to products by external factors which are not associated with the manufacturing/inherent condition of the product and such acts which disregard the warranty policies of manufacturers, cannot claim relief under the 'Act'. The provisions and terms of the Apple Warranty specifically exclude damaged products which is the case in the present matter.

   Thereafter the opposite party No. 1 also reproduced some terms and conditions of warranty provisions/terms, the reproduction of which is not considered necessary at this stage.

8. It is not disputed that complainant purchased mobile phone but pleaded that dealer was not authorized dealer/reseller of the opposite party.

9. It is further mentioned that complainant approached opposite party No. 2 an authorized service provider on 07-06-2018 for some battery draining issue. The opposite party diagnosed the device and found the said issue. The part was replaced. Issue in the device was resolved and it was returned back to complainant in working condition. Thereafter complainant approached opposite party No. 3 an authorized service provider on 08-10-2018 for some battery draining and heating issues. The opposite party No. 3 diagnosed the device and found that the device was tampered. It resulted into unauthorized modifications. The complainant was informed that his device was found tampered by third party. It cannot be covered under warranty. The opposite party found that the device was Beyond Economic Repair (BER). The opposite party No. 3 offered an out of warranty paid service to which the complainant denied. Thereafter complainant never approached opposite party at anytime. The complainant has breached the warranty provisions by violating terms and conditions. Un-authorized modification is strictly not covered under the warranty prescribed by opposite party No. 1.

10. It is also mentioned that complainant approached opposite third party before approaching opposite party No.3 which resulted into unauthorized modifications, The complainant has not produced any evidence in support of his claim. There is no deficiency in service on the part of opposite party No. 1. The complainant has not suffered any mental agony or harassment due to opposite party No. 1 and opposite party No. 1 has not caused any loss to complainant. The complainant has not produced any expert opinion to prove that device was defective.

11. On merits, the opposite party No. 1 has reiterated its stand as taken in preliminary objections and detailed above. All other averments of the complainant are denied. In the end, the opposite party No. 1 prayed for dismissal of complaint.

12. The opposite party No. 2 in its reply also raised legal objections that complainant has not approached this Forum with the clean hands before this Hon'ble Forum. He has concealed material facts and filed complaint to extort money from opposite party No. 2. The complaint has been filed to harass and humiliate the opposite party. That the complaint is not maintainable and that the complainant has no cause of action.

13. On merits, it is admitted that the complainant visited opposite party No. 2 on 07-06-2018 with issue "Low battery backup; Battery drain fast". The opposite party No. 2 sent the said handset to Apple Repair Centre of Apple India Pvt. Limited i.e. opposite party No. 1 for further repairs and diagnosis. The opposite party No. 1 diagnosed the handset and found problem related to the Camera and Display for which they replaced Camera and display. Hand set was returned to the complainant on 18-06-2018 with delivery report.

14. In further version, the opposite party No. 2 has also supported the version of opposite party No. 1 and prayed for dismissal of complaint.

15. In support of his complaint, the complainant has tendered into evidence his affidavit dated 20-2-2019 (Ex. C-1), bill (Ex. C-2), delivery report (Ex. C-3), photocopy of service report (Ex. C-4), photocopy of bill (Ex. C-5), photocopy of e-mail (Ex. C-6), delivery report (Ex. C-7) and photocopy of complaint (Ex. C-8).

16. In order to rebut this evidence, the opposite party No. 1 has tendered into evidence two affidavits of Priyesh Poovanna both dated 15-4-2019 (Ex. OP-1/1 & Ex. OP-1/2) and photocopy of Limited Warranty (Ex. OP-1/3).

17. The opposite party No. 2 has tendered into evidence two affidavits of Parupkar Singh both dated 10-4-2019 (Ex. OP-2/1 & Ex. OP-2/2), photocopy of service reports (Ex. OP-2/3 & Ex. OP-2/5), photocopy of delivery reports (Ex. OP-2/4 & Ex. OP-2/6), photocopy of terms and conditions (Ex. OP-2/7), photocopy of Customer Information Report (Ex. OP-2/8) and closed the evidence.

18. The complainant has also submitted written arguments.

19. We have heard learned counsel for the parties and gone through the record.

20. The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings. The learned counsel for the complainant has also relied uipon decision of Hon'ble National Commission rendered in First Appeal No. 310 of 2008 decided on 22-3-2018 in case titled Air France Vs. Op Srivastava and others.

21. We have carefully gone through the record and have considered the rival contentions.

22. The admitted facts are that the complainant purchased mobile hand set manufactured by opposite party No. 1 vide Invoice dated 27-1-2018 (Ex. C-2). The complainant lodged first complaint on 7-6-2018 vide Job Card (Ex. C-3) and the mobile was returned to him on 18-6-2018 after replacement of some parts. The complainant resubmitted his mobile hand set with authorized service centre of opposite party No. 1 on 8-10-2018 vide Job Sheet (Ex. C-4). A perusal of this Job Sheet finds mentioned “Service Type – Apple Limited Warranty”. Of course it is mentioned need to inspect internally, screw missing, dent near speaker, top panel side, mark under display side panel, back panel. It is further mentioned that touch screen was working at that time i.e. on 8-10-2018.

23. The opposite party has denied the service under warranty on the plea that the mobile hand set is tampered with. Mobile hand set was returned back vide Job Sheet dated 10-11-2018 (Ex. C-7). General condition is same as mentioned in Job Sheet Ex. C-4 but Touch Screen is mentioned “Not Workiing”.

24. When the mobile hand set was received by authorised service centre of opposite party No. 1 in working condition, it was expected to be returned back in working condition but at that time it was admittedly in not working condition.

25. The opposite party has also taken plea that device was tampered and this resulted into unauthorized modification. At the cost of repetition, mobile was purchased on 17-1-2018. The opposite party was under obligation to provide service free of cost for one year i.e. upto 26-1-2019. The complainant was having no reason to get it repaired from any other source on payment of charges. No reason for declaring the device tampered is disclosed. If the mobile hand set was treated as tampered on the ground that screws were missing then the Authorised Service Centre was to declare so at the time of receipt of hand set on 8-10-2018. There is no other evidence to prove that mobile hand set was out of warranty being tampered with. Therefore, the conclusion is that the denial of service within warranty period amounts to deficiency in service.

26. Now the question is regarding relief. The complainant has prayed for refund of price of mobile hand set. The mobile hand set was purchased on 27-1-2018. The first complaint was made on 7-6-2018 i.e. after more than four months from the date of purchase and the issue raised was “Battery related only”. Had there been any manufacturing defect, the complainant was not to use the mobile hand set for the period of four months without any problem. The second complaint was made on 8-10-2018 i.e. more than nine months after purchase of mobile hand set. The problem raised was again battery drain issue and heating issue. There is no expert evidence to prove any manufacturing defect in the mobile in question. Therefore, the prayer of the complainant for refund of price is not acceptable.

27. The complainant has also prayed for refund of Rs. 10,998/- on account of purchase of another mobile. The complainant is also not held entitled for this amount from the opposite party.

28. Resultantly, this complaint is partly accepted with Rs. 5,000/- as cost and Rs. 5000/- as compensation against opposite party No.1. The opposite party No. 1 is directed to get the mobile repaired free of cost to make it in working condition.

29. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

30. The complaint could not be decided within the statutory period due to heavy pendency of cases.

31. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    30-07-2019

    (M.P.Singh Pahwa )

    President

     

     

    (Manisha)

    Member