BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.53 of 2017

Date of Instt. 23.02.2017

Date of Decision: 29.04.2019

Ashish Singla aged about 26 year son of Sh. Ashwani Kumar Singla R/o H. No.60/61, Mohalla No.11, Jalandhar Cantt, Jalandhar.

..........Complainant

Versus

1. Apple India Pvt. Ltd. Having its registered office at 19th Floor, Concorde Tower C, UB City No.24, Vittal Mallya Marg, Banglore-560001.

2. Apple Service Centre, situate at 186-L, Model Town, Opposite Niku Park Market, Jalandhar City.

3. Jeet Sons, Model Town Market, Jalandhar through its authorized signatory/Proprietor.

4. Apps Daily Solutions Pvt. Ltd. C-Wing 6th Floor, Oberoi Garden Estate, Chandivali Farm Road, Andheri (E), Mumbai- 400072.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. Sorav Gupta, Adv Counsel for the Complainant.

Sh. Aditya Jain, Adv Counsel for the OP No.1.

Sh. R. K. Bhalla, Adv Counsel for the OP No.2.

OPs No.3 & 4 exparte.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the OP No.1 is the manufacturer of the mobile phones made by Apple International and OP No.2 is service centre of OP No.1 and the OP No.3 is retailer of OP No.1. The OP No.4 is insurance company from whom the complainant had got insured his phone. On 28.12.2016, the complainant had purchased the Apple 6 handset from OP No.3. After sometime in the month of 16 November, 2016, it has come to the notice of the complainant that the main/home key of the handset was not working and then on the next working day, the complainant visited the service centre of OP No.1 i.e. OP No.2 and after checking the handset, the engineer refused to book the handset of the complainant and told that as the handset is physically damaged and not covered under the warranty conditions and if the complainant wants to repair his handset, then the complainant has to pay the charges for the same. At that time, the complainant told him that he has got his handset insured, so he is not liable for any type of charges. The engineer advised the complainant if he wants to repair his handset then he would contact with insurance company. As per the advice of the engineer, the complainant visited the office of insurance company which is situated near KMV College, Jalandhar as per the address given by the OP No.2, but the same was closed permanently.

2. That again the complainant visited the office of the OP No.2 and told them the office of insurance company had closed permanently. Thereafter, the OP No.2 had given the mobile number i.e. 7888527828 of Mr. Khan representative of OP No.4. After that the complainant contacted with Mr. Khan and stated about the problem. At that time, he assured the complainant that the handset will be repaired or replaced as soon as possible. But all in vain. The complainant made various calls, but he neither replied to any call nor replaced or repaired the handset. There is a deficiency in service and unfair trade practice on the part of the OPs for not exchanging the mobile phone to the complainant and there is sheer negligence on the part of the OPs by not refund the price of the mobile phone and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount i.e. Rs.35,000/- price of the mobile phone alongwith interest or to exchange the phone and be also directed to pay compensation of Rs.50,000/- for the mental tension and harassment caused to the complainant and further, OPs be directed to pay Rs.10,000/- as litigation expenses.

3. Notice of the complaint was given to the OPs, but despite service OPs No.3 and 4 did not come present and ultimately, both the OPs were proceeded against exparte.

4. OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is malafide, devoid of merits and contradicts established principles of law and further submitted that the OPs No.2 to 4 are not the authorized service provider nor authorized resellers of the OP No.1 and further submitted that the OP No.1 never gave any sort of insurance directly or indirectly on its products. The only manner in which the complainant can avail replacement or service of his mobile is, if he follows the terms and conditions of the warranty. It is further averred that the complainant has never brought or got his iPhone inspected by any authorized service provider of the OP No.1. He has not produced any sort of evidence of the alleged defect in his mobile being certified by any of the authorized service provider of the OP No.1. In the absence of any such evidence, the claims of the complainant does not hold water and is liable to be dismissed and further alleged that the complainant is also guilty of materially concealing and suppressing material facts and has approached this Forum with unclean hands and in view of the above circumstances, we cannot assume that there is any manufacturing defect in the mobile set. It is further alleged that the onus to prove allegations lie on the complainant and hence, the complainant may be directed to furnish and prove his allegations in relation to the complaint, particularly in view of the admission on part of the complainant brought on record by the OP No.1 in this case. The instant complaint is not only misconceived, but is designed to support a false case to suit the complainant's malafide interest, whereby the complainant has sought to take undue advantage of his own negligence by seeking to misuse the general protection available to consumers in law. On merits, it is not denied that the complainant purchased the mobile in question and further, the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

5. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that no cause of action accrued to the complainant to file the present complaint against the answering OP. The answering OP has been wrongly arrayed as party in the present case, whereas the answering OP is no role to play in the present case. Moreover, there is no such service centre in the name of Apple Service Centre, 186-L, Model Town, Jalandhar. The answering respondent is company name B2X Service Solution India Pvt. Ltd. The answering OP is not a party to the complaint and therefore, no relief can be granted against the answering OP. It is further submitted that the main dispute between the parties is regarding the insurance claim of the mobile set and entire dispute is pertaining to the OP No.4 from which the complainant got insured of his mobile and there is not any role of the answering OP and therefore, the present complaint is liable to be dismissed against the answering OP. On merits, the factum elaborated in the complaint are categorically denied for want of knowledge and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 Retail Invoice and Ex.C-2 Insurance and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith documents Ex.OP1/1 and Ex.OP1/2 and closed the evidence.

8. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A and closed the evidence.

9. We have heard the arguments from learned counsel for the respective parties and also gone through the case file very minutely.

10. Admittedly, the complainant purchased a mobile Apple 6 handset from OP No.3 as per photostat copy of the Invoice Ex.C-1. The complainant alleged in Para No.3 of the complaint that he purchased a mobile handset on 28.12.2016, whereas the date put on the bill is 28.02.2016 and moreover, make of the mobile is not mentioned on the bill rather the bill shows that OP No.3 is the authorized dealer of Nokia, Sony Ericsson and Samsung not of the Apple. Further, the complainant brought on the file a photostat copy of one document alleged himself that it is an insurance policy, but on this document Ex.C-2, nothing is mentioned in regard to insurance of the mobile or its premium. So, we cannot construe this document as an insurance policy. If the complainant got insured the mobile handset, then he must pay some premium of the same, if so, then its receipt must be placed on the file.

11. Further, the complainant alleged in Para No.4 that in the month of November, 2016 he came to know that the home key of the mobile handset was not working properly. The complainant himself described contradictory plea in Para No.3 and 4 of the complaint as in Para No.3 if the mobile purchased on 28.12.2016, then how any defect occurred prior to date of purchase i.e. 16.11.2016. So, the story propounded by the complainant itself seems a manipulated as well as self made story just to en-cash some thing from the OPs. The complainant alleged that he brought the handset at a service centre of OP No.2, but OP No.1 manufacturing firm categorically stated/described in the written reply that the OP No.2 is not a service centre of the manufacturing firm i.e. OP No.1 and even Job Card issued by the OP No.2 is not placed on the file. So, in the absence of any documentary evidence, how we can accept that there is any manufacturing defect in the mobile phone. So, under these circumstances, we are of the considered opinion that the complaint of the complainant is without any solid substances as well as without merits, therefore, the complaint of the complainant fails and accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

29.04.2019 Member President