BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.43 of 2017

Date of Instt. 16.02.2017

Date of Decision: 29.04.2019

Raghav Singla aged about 26 years son of Sh. Suresh Kumar Singla R/o H. No.40/1, Mohalla No.14, 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. Vardhman Tele Marketing, S. C. O. 75, Opposite Telephone Exchange, Old Delhi Road, Near Bikanerwala, Sector 12-A, Gurgaon, Haryana-122001 through its Partner/Authorized Representative.

3. Paytam Having its registered office at 144/533, Second Floor, 22nd Main, 150 feet, Ring Road, HSR Layout, 1st Sector (Agara), Banglore-560102 through its Authorized Representative.

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

….….. 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.

OP No.2 exparte.

Sh. Y. V. Rishi, Adv. Counsel for the OP No.3. (Join the further proceeding)

Sh. R. K. Bhalla, Adv Counsel for the OP No.4.

Order

Karnail Singh (President)

1. The complainant has filed the instant complaint, wherein alleged that OP No.1 is the manufacturer/supplier of the mobile phones made by Apple International and OP No.2 is online seller of different products, which are manufactured by difference companies. The OP No.3 received the payment of the good sold by OP No.2 and other online sellers. The OP No.2 is the authorized supplier of the OP No.1, who supplied the goods on behalf of OP No.1 to the persons, who ordered the goods on the website. The OP No.4 is the authorized service centre of OP No.1. On 17.12.2016, the complainant placed an order of Apple iPhone 7, 32 GB, Black, vide order No.2405827785 dated 17.12.2016, for Rs.57,774/- including shipping charges. The OP No.2 booked the order of the complainant and it is the duty of the OPs to send the product as per the order within its stipulated delivery time and the payment was made in advance through OP No.3. The OPs delivered the product at the address of the complainant and at the time of delivery of above said product, the complainant asked the delivery man to wait for while as the complainant wants to open the box of the mobile phone just to ensure that the phone was same and upto the mark as that which was ordered by the complainant, but it is pertinent to mention here that the delivery man could not wait and left the place before opening the box.

2. That then the complainant opened the box of the phone and very shocked and surprised when the complainant saw that there are so many scratches on the phone and thereafter, when the complainant turned on the mobile phone, then it has come to his knowledge that the touch screen and speaker of the mobile phone has not been working properly and except that there are so many problems in the said mobile phone. Photograph of the mobile phone is attached. Then the complainant immediately contacted the OP No.2, through email and then the OP No.2 replied through email and accepted that the OP No.2 will sought out the problem within 2 or 3 business days and then the complainant many times contacted the OPs through various emails and in all the emails, the OPs assured the complainant that they will resolve the problem as soon as possible. At last, the OP No.2 instead of resolving the problem told the complainant to contact with OP No.4. But the OP No.4 had not listen the request of the complainant and refused to exchange the mobile set. That 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 refunding 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 price of the mobile or to exchange the mobile phone and further, OPs be directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.30,000/- and further OPs be directed to pay Rs.10,000/- as litigation expenses.

3. Notice of the complaint was given to the OPs, but OP No.2 despite service, miserably failed to appear and as such, OPs No.2 was proceeded against exparte and similarly, OP No.3 was also proceeded against exparte, but counsel for the OP No.3 joined the proceeding at the stage of argument.

4. OP No.1 appeared and filed its reply, whereby contested the complaint by taking preliminary objection that the complaint of the complainant is malafide, devoid of merit and contradicts established principles of law and further submitted that the mobile of the complainant has not inspected by any authorized service centre of the OP and replacement of the mobile is only as per the terms of the warranty and further submitted that the complainant has concealed the material facts from the Forum and even there is no expert opinion brought on the file by the complainant to prove the allegation as made in the complaint. On merits, it is submitted that the OP No.1 is the manufacturer/supplier of Apple iPhone, but the averments made by complainant that the OP No.2 is the online seller of products of various companies is not within the knowledge of the OP No.1 rather the OP No.2 is not authorized seller of the OP No.1 products, even the OPs No.2 to 4 are not the authorized sellers of the OP No.1 products and as such, the OP No.1 cannot be held responsible for any of their activities as there is no privity of contract between them and OP No.1. Even the OP No.1 does not sell its products directly, it's only sold vide their authorized resellers. The other averments 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.4 filed its separate reply and took preliminary objections that the instant complaint is not maintainable and even 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 a party in the present case because 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. On merits, the averments 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.

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 to Ex.C-22 and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A along with document Ex.OP-1 i.e. Copy of Warranty Card and closed the evidence.

8. Similarly, counsel for the OP No.4 tendered into evidence affidavit Ex.OP4/A and closed the evidence.

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

10. There is no dispute that the complainant has not purchased the mobile in question from any authorized dealer of OP No.1 manufacturing firm rather as per version of the complainant, he purchased the said mobile phone Apple iPhone 7, 32GB, Black on 17.12.2016 by placing an order with OP No.2 and make the payment through Paytm in advance through OP No.3 and thereafter, the mobile in question was delivered to the address of the complainant, but after opening the box, he found that there are so many scratches on the phone and also having some other problems and the mobile is not properly working and then the complainant immediately contacted the OP No.2 through email and OP No.2 gave assurance to the complainant that the matter will be solved within 2 or 3 days, though the complainant also approached OP No.4, who is allegedly service centre, but the OP No.4 categorically stated in its reply that he is not running a service centre of the Apple and ultimately, the complainant again sent an email message to OP No.2, to whom the complainant has booked the said mobile phone, but the said OP No.2 did not come present despite service, for the best known reason.

11. In order to establish that there are some scratches on the mobile phone, the complainant has brought on the file a photograph of the said mobile Ex.C-1 and further, Ex.C-2 is a receipt, whereby the complainant make the payment of Rs.57,675/-, the price of the mobile phone and Ex.C-3 is a bill, issued by OP No.2. Now, one thing is established that the complainant had purchased the mobile in question from OP No.2, who is a online site for selling the product of different firms. OP No.1, who is a manufacturing firm of the product in question categorically explained in its reply that OP No.2 is not authorized dealer of the OP No.1 and as such, we cannot fasten any liability of OP No.1 being a manufacturer of the said product, for the reason the same has not been sold by authorized dealer rather the OP No.2 sold the said mobile phone to the complainant being not authorized dealer and therefore, if there is any liability assessed by this Forum that will be fastened to the OP No.2.

12. Admittedly, the complainant made correspondence to the OP No.2 by email, some emails sent by the complainant and in response to that the complainant also received the emails, which are available on the file Ex.C-5 to Ex.C-22. In the first email Ex.C-5, the OP No.1 gave assurance to the complainant that his matter will be take up to 48 to 72 hours to resolve the issue and further, OP No.2 in email Ex.C-12, admitted that some inconvenience has been caused for not using the Apple iPhone 7, 32 GB. So, through these emails, the OP admitted there is some problem in the mobile, but it will be solved within 2 or 3 days, but till filing of the complaint, the mobile phone of the complainant was not replaced by the OP No.2. We find that the emails correspondence between the complainant and OP No.2 itself established that there is some problem in the mobile and as such, no further evidence is required because the OP No.2 itself not appeared despite service, knowingly that he has committed some negligence as well as unfair trade practice. So, under these circumstances, we are of the considered opinion that the OP No.2 is liable to replace the mobile as well as compensate the complainant.

13. In view of the above detailed discussion, the complaint of the complainant qua OP No.2 is partly accepted and regarding other OPs, the same is dismissed. Further, OP No.2 is directed to refund the price of the mobile phone i.e. Rs.57,774/- along with interest @ 12% per annum from the date of placing the order of iPhone i.e. 17.12.2016, till realization and further OP No.2 is directed to pay compensation to the complainant, to the tune of Rs.15,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14. 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