DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : CC/37/2019

Date of Institution : 08.04.2019

Date of Decision : 18.11.2019

Davinder Singh son of Sh. Surjit Singh, resident of Village Manal, Tehsil and District Barnala.                    …Complainant

Versus

1. Apple India Private Limited, 19th Floor, Concord e Tower-C, UB City, No. 24, Vittal Mallya Road, Bangalore-560001, India.

2. F-1 Info Solutions and Service Pvt. Limited, 259/1, BXIX Ground Floor, Batra Place, Ludhiana-Ferozepur State High Way, Opposite Feroze Gandhi Market, Ludhiana, Punjab.

3. New Ashoka Electrical Store, Handiaya Bazaar, Near Aggarwal Dharamshala, Barnala, Tehsil and District Barnala.

…Opposite Parties

Complaint Under Section 12 of Consumer Protection Act.

Present: Sh. Davinder Singh Complainant in person.

Sh. HS Sandhu counsel for opposite party No. 1.

Sh. GS Kalia counsel for opposite party No. 2. 

Opposite party No. 3 exparte. 

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

3. Smt. Manisha : Member 

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant namely Davinder Singh has filed the present complaint under the Consumer Protection Act 1986 against Apple India Private Limited, Bangalore and others. (hereinafter referred as opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that on 11.2.2019 the complainant purchased Apple Airpods (Head Phone) having IMEI No. FWYY2CYNH8TT from opposite party No. 3 for a sum of Rs. 12,900/- vide invoice dated 11.2.2019 and its warranty was for one year. 

3. It is further alleged that on 27.3.2019 the said Airpods not revived and he brought the matter to the notice of opposite party No. 3 who advised the complainant to take the matter with the opposite party No. 2, so on 1.4.2019 complainant approached opposite party No. 2 at Ludhiana and brought the said defect in their knowledge who returned the same with the report that “Customer report: Airpods Connectivity (Unable to connect). During VMI inspection we found air-pods mic having damaged and melt according to Apple VMI guidelines which will not considered under warranty service. We have returned the Airpods to customer in same condition as per process and hand over written job sheet to consumer on customer request.” The complainant brought the said fact to the knowledge of Manager F-1 who ordered the complainant to deposit a sum of Rs. 14,000/- but complainant refused to it as the products are within the warranty period. The complainant shown the said products to Gagan Telecom Special Mobile Repair Shop who opined that there is manufacturing defect in the product which is beyond repair. So, the act of the opposite parties is deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to pay a sum of Rs. 12,900/- as price of Airpods (headphones). 

2) To pay Rs. 20,000/- on account of mental tension, agony and  harassment.           

3) To pay Rs. 10,000/- as litigation expenses.

The complainant also filed rejoinder and reiterated the facts as mentioned in the complaint. 

4. Upon notice of this complaint, the opposite party No. 1 filed written version taking preliminary objections interalia on the grounds that the consumers who willfully damage or negligently handle a product are not eligible to claim any relief and breach of warranty policy. As per terms of Apple Warranty specifically exclude damaged products which is the case in the present matter. The warranty does not apply if the product damage due to accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, so the Airpods will be rendered out of warranty as complainant used the same negligently and damaged it and it cannot be serviced/replaced under warranty. It is admitted that complainant approached the opposite party No. 2 on 1.4.2019 with regard to some alleged issues with his Apple Airpods who inspected the same and found that it was melted and mic was found to be damaged so it was rendered out of warranty. The opposite party No. 2 offered paid repair but complainant declined for the same. Further, complainant concealed material facts from this Forum. 

5. On merits, the opposite party No. 1 submitted that the complainant failed to explain how the Airpods failed to revive on 27.3.2019. It is admitted that complainant approached the opposite party No. 2 where after inspection it was told to the complainant that Airpods were out of warranty due to negligently damage by him. The alleged Gagan Special Mobile Telecom shop not authorized by opposite party No. 1 to give sort of opinion of any of its products and also not Government Certified Agency or lab to certify the quality of a product. The complainant himself violated the terms and conditions of warranty. Lastly, the opposite party No. 1 prayed for the dismissal of the present complaint.

6. The opposite party No. 2 also filed written reply taking preliminary objections on the grounds of present complaint not maintainable and not come to the Forum with clean hands. On merits, it is submitted that as the defect in the Apple Airpods is not covered under the warranty and it cannot be removed free of costs and opposite party No. 2 could not be able to do anything against the policy of the company. The alleged dealer mentioned in the complaint is not expertise of the technical defects in the products. Further, the replacement of the product is not under the control of the answering opposite party rather it is the prerogative of opposite party No. 1 as per terms and conditions of warranty. It is admitted that complainant visited the service centre on 1.4.2019 but as the Airpod mesh is damage and melt which will not consider to process in warranty as per Apple VMI guidelines. Lastly, the opposite party No. 2 also prayed for the dismissal of the present complaint with costs.

7. The opposite party No. 3 failed to appear before this Forum despite service so the opposite party No. 3 was proceeded against exparte vide order dated 9.7.2019. 

8. In support of his complaint, complainant tendered into evidence copy of bill dated 11.2.2019 Ex.C-1, copy of service delivery challan Ex.C-2, copy of report of Gagan Telecom Ex.C-3, affidavit of complainant Ex.C-4, copy of bill dated 17.5.2019 Ex.C-5 and closed the evidence.

9. To rebut the case of complainant, opposite party No. 1 tendered in evidence affidavit of Priyesh Poovanna Ex.OP-1/1, copy of Authority letter Ex.OP-1/2, copy of warranty version Ex.OP-1/3 and closed the evidence. Opposite party No. 2 tendered in evidence affidavit of Abhinav Sood Ex.OP-2/1, photo of Ear Pad Ex.OP-2/2, copy of warranty version Ex.OP-2/3, copy of Authority letter Ex.OP-2/4 and closed the evidence. 

10. We have heard the learned counsel for the parties and have gone through the record. Written arguments also filed by opposite parties.

11. It is admitted fact between the parties that complainant purchased the Apple Airpods from the opposite party No. 3 vide bill dated 11.2.2019 Ex.C-1 for Rs. 12,900/- and warranty of same is for one year.  It is also admitted by the opposite parties that some defect has arisen in the Airpods of complainant so he approached opposite party No. 2 on 1.4.2019 who inspected the same vide Service Delivery Challan Ex.C-2. It is not denied by the opposite parties No. 1 and 2 that they have not repaired or replaced the Airpods of complainant within the warranty period of one year. 

12. The main objection of the opposite parties No. 1 and 2 for not repairing the airpods of the complainant is that the same were damaged and melted due to negligence of the complainant so the product was out of warranty and cannot repair free of costs. For this they have relied upon copy of warranty version Ex.OP-1/3 in which it is mentioned that warranty does not apply if damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external use, so the opposite parties not liable to repair or replace the airpods of the complainant under warranty free of costs. 

13. On the other hand the complainant relied upon copy of service delivery challan Ex.C-2 in which it is mentioned that complainant approached the opposite party No. 2 on 1.4.2019 within the warranty period of airpods in question which were purchased by him on 11.2.2019 vide bill Ex.C-1. It is further mentioned in this document Ex.C-2 that there was defect in the airpods i.e. Airpods connectivity issue (unable to connect). It is also mentioned in Ex.C-2 that during VMI inspection we found airpods damaged and melt which will not considered under warranty and return the same to the customer in same condition. So, from this document it is proved on the file that opposite parties have not repaired or replaced the airpods of the complainant despite being within warranty period by taking the undue advantage of their terms and conditions as mentioned in Ex.OP-1/3. Further, the complainant also relied upon report of Gagan Telecom Special Mobile Repair, Sherpur dated 2.4.2019 Ex.C-3 in which Gagandeep Singh reported after inspection of the airpods that complainant brought the Apple airpods for inspection which were defective and not repairable. He further reported that as the same were within warranty period so he cannot open the airpods. He further reported that as the charging case of the airpods not auto cut at the time of charging due to which the airpods become defective which was a manufacturing defect. He specifically further stated in this report that due to this defect from April 2019 Apple Company changed their charging technology and slow the charging as the same defect not arise in future. This report duly proved on the file that the same was the manufacturing defect in the airpods of the Apple company. The opposite parties not filed report or affidavit of any expert to rebut this report Ex.C-3 tendered by the complainant in evidence. So, by considering this report we are of the view that there is manufacturing defect in the airpods of the complainant and by not replacing or refunding its amount is clear cut deficiency in service and unfair trade practice on the part of the opposite parties. The opposite party No. 3 intentionally not appeared before this Forum to clear its position and not in any way help the complainant to repair or replace the airpods after making profit by selling the same so in our view the opposite party No. 3 is also deficient in providing service to the complainant. 

14. The Hon'ble National Commission, New Delhi in case titled MG Electronics Versus Sham Nandlal Sharma (Dec.) Through Lrs. And another reported in II (2018) CPJ-239 (NC) held as under.-

“Consumer Protection Act, 1986- Sections 2(1)(f), 2(1)(g), 21 (b)- Computer-Defects-Repair not done-Deficiency in service- District Forum partly allowed complaint-State Commission dismissed appeals-Hence revision-Documentary evidence proves that complainant purchased computer from Ops and said computer started giving problems, only after short period of purchase-Entire material place on record including written arguments filed by Ops does not indicate anywhere whether Ops took any steps to carry out repairs in said computer and supply same in defect-free condition to complainant-Powers in exercise of revisional jurisdiction should be used only, if there is a material defect or jurisdictional error in orders passed by Consumer Fora below-Impugned order upheld.”

Further in this citation in para No. 8 it is mentioned that; The consumer complaint in question had earlier been decided exparte against both the opposite parties by the District Forum vide order dated 30.10.2000. However, in appeal before the State Commission, the said order was set aside and the case was remanded to the District Forum vide order dated 19.6.2008 for a decision afresh. In the order passed by the District Forum on 12.9.2008, both the opposite parties have been jointly and severally held liable to pay the price of the computer i.e. Rs. 87,040/- alongwith interest @ 9% per annum from 20.4.1998 till realization. A perusal of the copies of the documents placed on record in this revision petition shows that the OP-2 Capgun Exim sent letter dated 20.4.1998 to the Janta Commercial Bank, Akola saying that the complainant Sham Nandlal Sharma had purchased a Note Book Computer through M/s MG Electronics i.e OP-1. The said computer had some hardware and functional problems during operations and the machine was with them for further repairs. It is evident from this letter that the said computer was duly purchased by the complainant and the same had been lying with the OP-2 for repairs. Another letter dated 28.4.1998, sent by the OP-2, addressed to the OP-1 has been placed on record, in which it has been stated that the said computer had been sold to OP-2 by OP-1. It was also stated that as soon as the repair was completed, the machine was handed over to the complainant. On record, is the copy of quotation dated 1.1.1998, in which it has been stated that the warranty period for the computer was one year. A copy of bill No. 576 dated 24.2.1998 in favour of the complainant has also been placed on record, as per which the computer was sold by the petitioner/OP-1 to the complainant for a sum of Rs. 87,040/-. It is made out from this entire documentary evidence that the complainant did purchase the computer in question from the Ops and the said computer started giving problems, only after a short period of purchase. Whether the said computer was purchased directly from the OP-2 or the purchase was affected through OP-1, it was the duty of the Ops to have ensured that the defects in the computer were got removed. The entire material placed on record including the written arguments filed by the Ops does not indicate anywhere whether the Ops took any steps to carry out the repairs in the said computer and supply the same in a defect free condition to the complainant. We have, therefore, no reason to disagree with the findings given by the District Forum, duly affirmed by the State Commission. Accordingly, we do not find any infirmity, illegality or jurisdictional error in the orders passed by the Consumer Fora below. Moreover, it is a settled legal proposition that the powers in the exercise of the revisional jurisdiction should be used only, if there is a material defect or jurisdictional error in the orders passed by the Consumer Fora below. Under these circumstances, this revision petition is ordered to be dismissed in limine and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs. 

This citation of the Hon'ble National Commission is fully applicable to the facts and circumstances of the present case, as in the present case also the airpods of the complainant were got defective only after short period of purchase within warranty period and opposite parties have not taken any step to repair the same free of costs within warranty period rather refused to repair or replace the same within warranty period, so there is deficiency in service and unfair trade practice on the part of the opposite parties. 

15. As a result of above discussion, present complaint is allowed. As complainant already purchased new Headphone of Apple vide bill Ex.C-5 so there is no benefit to complainant if we order to replace the defective airpods with new one. Accordingly, opposite parties No. 1 and 2 are directed to refund the price of the airpods i.e. Rs. 12,900/- to the complainant and to pay Rs. 3,000/- to the complainant as consolidated amount of compensation on account of mental tension, harassment and litigation expenses. The opposite parties No. 1 and 2 are also directed to deposit Rs. 3,000/- as costs in the Consumer Legal Aid Account maintained by this Forum. The opposite parties No. 1 and 2 jointly and severally liable to comply with the above mentioned order. Further, the opposite party No. 3 is also directed to pay Rs. 3,000/- to the complainant as consolidated amount of compensation on account of mental tension, harassment and litigation expenses. Compliance of order be made within the period of 30 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN FORUM:

  18th Day of November 2019

 

 

            (Kuljit Singh)

            President

 

            (Tejinder Singh Bhangu)

Member

 

(Manisha)

Member