| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 208 of 16-8-2018. Decided on : 31-01-2022 Ankush Vij S/o Sanjeev Vij R/o # BIX 148, Anand Nagri, Govt. Seed Form, Abohar, District Fazilka. ........Complainant Versus Grover Brothers, Near New Bus Stand, Kangra (H.P), through its Proprietor/Partner; B2X Service Solutions India Private Limited, City Centre Mall, Shop No. 6, Ground Floor, Civil Lines, Bathinda, Punjab, through its Proprietor/Partner; Apple India Private Limited, No. 24, 19th Floor, UB City, Vittal Maliya Road, Bangalore 560001, through its Managing Director/Chairman
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Vishal Goyal, Advocate For opposite parties : OP No. 1 exparte Sh. Lalit Garg, Advocate, for OP No. 2 Sh. B L Sachdeva, Advocate, for OP No. 3 ORDER Kanwar Sandeep Singh, President The complainant Ankush Vij (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Grover Brothers and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that opposite party No. 3 is manufacturer of the electronic items including mobile handsets. The opposite party No. 3 launched a new mobile handset, model I-Phone 7+ 32 GB and advertised about their mobile handset in various advertisement agencies claiming that said handset is dust and water resistant. That being allured by the advertisements of opposite party No. 3, the complainant purchased one mobile handset make I-Phone 7+ 32 GB having IMEI No. 359160075932490 manufactured by opposite party No. 3, from opposite party No. 1 vide Bill No. 01137 dated 19/07/2017 for a sum of Rs. 56,500/- and paid the total amount in cash to opposite party No. 1. At the time of purchase, the opposite party No. 1, assured the complainant that the said handset is of best quality and there is no complaint regarding functioning of the same and hand set is water resistant handset and also provided guarantee of one year in case of any defect in the handset. Accordingly, being induced by the opposite parties no. 1 & 3, the complainant purchased the mobile handset. It is alleged that complainant started using said mobile hand set. On 16-07-2018 when complainant was at Bathinda for a business trip, he observed that his Mobile handset suddenly stopped working and was in switched off state. The complainant approached opposite party No. 2 who is the authorized service Centre of opposite party No.3 and they issued the service job card bearing No. BAT160718498093 dated 16-7-2018. Thereafter, complainant again approached the office of opposite party No. 2 immediately on next day and inquired about the reasons for the defect of the mobile handset in question. After checking the handset, the opposite party No. 2 proclaimed that the handset in question is allegedly water affected and now it is out of warranty. It can only be repaired on payment whereas the handset was well within the warranty. The complainant requested the opposite party No. 2 that first of all, handset is not water affected and further that the opposite parties had been proclaiming hand set in question to be water proof and dust resistant set and it can be used in extreme weather conditions like snow and rain. As such, question of developing any defect due to water, in hand set cannot arise. It is further alleged that opposite party No. 2 retained the handset vide Job Sheet dated 16-07-2018 with the excuse that handset is now out of warranty though he has purchased the same on 19-07-2017 and if the complainant want the mobile handset, he has to pay 35,000/- as repair charges. The complainant alleged that he is suffering from great mental tension, agony botheration and harassment due to the above said arbitrary act of the opposite parties and defect in the handset and the complainant has been deprived of using the handset despite spending huge amount for purchasing the same which is having some manufacturing defect. As such the complainant is entitled to the replacement of the same with new one or in alternative is entitled to the refund of the total amount of Rs. 56,500/- from the opposite parties. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to replace the defective hand set in question with new one or in the alternative to refund its total price i.e. Rs. 56,500/- and to pay to complainant compensation to the tune of Rs. 20,000/- in addition to litigation expenses amounting to Rs. 10,000/-. Upon notice, none appeared on behalf of opposite party No. 1, as such, exparte proceedings were taken against opposite party No. 1. The opposite parties No. 2 & 3 put an appearance through their respective counsel and filed written statements. The opposite party No. 2 filed written reply and raised legal objections that the complainant has no locus standi to file the present complaint. As per invoice produced by the complainant, the mobile phone in question was purchased by one GURU JI AMB. The complainant has neither alleged nor produced any document on record to show that he has any concern with firm GURU JI AMB. That this Commission has no jurisdiction to entertain, try and decide the present complaint. That opposite party No. 2 has not carried out any repair work of the handset in question and by mere deposit of handset does not create jurisdiction. That opposite party No.2 is a "service centre" of opposite party No.3 and has been providing best services to the customers. It has been pleaded that on checking the hand set in question, the opposite party No. 2 told the complainant that hand set is water affected and is out of warranty and can only be repaired at the cost of the complainant but the complainant did not agree to get the same repaired nor he received the handset in question back from opposite party No. 2. Further legal objections are that the complaint does not comply to the mandatory provisions of 'Act'. That the complaint has bad non-joinder of manufacturer as party to the complaint. That the complainant does not fall within the definition of "consumer" as the Handset in question was allegedly being used for commercial purposes". On merits, the opposite party No. 2 admitted that the handset in question was deposited with opposite party No. 2 on 16.7.2018 and that the opposite party No. 2 had issued Job Card in question. After receipt of handset, the official of opposite party No. 2 immediately checked the handset and found that it is already water affected and is out of Warranty and the same can only be repaired on the payment of repair charges. The complainant was informed in this regard there and then but he did not agree for the repair of the handset. Even the complainant did not receive the handset back and left service centre. It is specifically denied that the opposite party No. 2 disclosed the repair charges as Rs.35,000/- as falsely alleged, but the complainant as mentioned, never agreed to get the handset in question repaired, from opposite party No. 2, so the question of disclosing the repair charges by opposite party No.2 to the complainant does not arise at all. The opposite party No. 2 has pleaded that the complainant has levelled false and baseless allegations against opposite party No. 2. In fact, the complainant with a malafide intention wants to get the refund of cost of the handset in question. After denying all other averments, the opposite party No. 2 prayed for dismissal of complaint. The opposite party No. 3 filed separate written reply raising preliminary objections that the contentions, submissions and allegations in the complaint are incorrect, vexatious, misleading and denied except which specifically admitted hereinafter. That, the present complaint is a malafide one, devoid of merit and contradictory to the established principles of law. It has been pleaded that it is a common market principle and also an established position of law that consumers who wilfully destroy, damage or negligently handle a product, are not eligible to claim any relief under the Act. To be specific, 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 (in the instant case "Warranty") 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. This Warranty does not apply: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship; (c) to damage caused by use with a third party component or product that does not meet the Apple Product's specifications (Apple Product specifications are available at www.apple.com under the technical specifications for each product and also available in stores); (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause; (e) to damage caused by operating the Apple Product outside Apple's published guidelines; (f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Apple or an Apple Authorized Service Provider ("AASP"); (g) to an Apple Product that has been modified to alter functionality or capability without the written permission of Apple; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the Apple Product; (i) if any serial number has been removed or defaced from the Apple Product; or (j) if Apple receives information from relevant public authorities that the product has been stolen or if you are unable to deactivate passcode-enabled or other security measures designed to prevent unauthorized access to the Apple Product, and you cannot prove in any way that you are the authorized user of the product (e.g. by presenting proof of purchase). A perusal of the extract of the warranty above clearly shows that the alleged damage caused to the iPhone on account of the negligent misuse by the complainant and it will be rendered out of warranty and the said alleged damage is not attributable to opposite party No. 3. It has also been pleaded that complainant had originally purchased an iPhonc 7 plus Gold 32 GB bearing Serial No. F2LT7QEGHG06 and IMEI No. 359160075932490 from the opposite party No. 1 for the cost of Rs. 56,500/- on 19-07-2017. The complainant had approached the opposite party No. 2, an authorized service provider of opposite party No. 3 on 16-07-2018 for some alleged issues regarding the device not powering on. The opposite party No. 2 made thorough inspection of the device and found the presence of the liquid content in the device which resulted into liquid damage. The complainant was clearly informed that his device was rendered out of warranty and hence cannot be covered under the warranty and offered an out of warranty paid service to which the complainant denied. The complainant had violated the terms and conditions as per warranty policy clause of opposite party No. 3. The complainant refused the cost of repair. The opposite party No. 3 has further pleaded that in fact, the iPhone 7 Plus is only water-resistant, that means the customer still have to be careful around water. Here in this case, the complainant has negligently handled his device and this resulted into liquid damage. The complainant has not produced any sort of evidence in support of his claim. Further preliminary objections are that the complainant has filed this frivolous complaint by twisting the facts in order to mislead this Commission with an intention to enrich undeserving financial benefits from opposite party No. 3. That opposite party No. 3 never advertised that iPhone 7 Plus is water proof. The complainant has not understood the difference between Water Resistance and Water Proof. Technically Water resistant means the ability to resist the penetration of water to some degree but not entirely. Waterproof means totally impervious to water or ability to ensure no water affects or enters it. The complainant instead of understanding the technical difference is making malicious and defamatory comment stating that opposite party No. 3 is making misleading advertisements in order to mislead the public. As per opposite party No. 3, the resistance level comes down over time and due to the same it should be handled properly and not being negligent. The complainant has negligently handled the iPhone 7 Plus and damaged it by allowing water to enter it. Due to the same the device has suffered liquid damage and the said iPhone 7 Plus is now out of warranty. That the complainant has not produced any expert opinion to show/prove that the device had manufacturing defect. In the warranty coverage, the opposite party No. 3 made it clear in the fine print that they won't be held responsible for water or dust damage. The complainant has not understood the fact that how water resistance is different from water proof. The terms 'waterproof' and 'water resistant' mean different things completely. The word 'waterproof' refers to a product's ability to repel water from it. The word waterproof means that it allows absolutely no water into the product and the waterproof is also listed with the amount of pressure the bag, fabric or electronic equipment can sustain. 'Water resistant' is basically that it will repel water or protect against water but only under certain circumstances. The term Water resistance does not guarantee that the product will not ruin if it is in the conditions that are not mentioned. This means that the product will not be able to sustain high atmospheric pressures and may not be able to be completely submerged under water. It is pleaded that standard one-year limited warranty of opposite party No. 3 does not cover iPhone 7 Plus against liquid damage. So, if the complainant somehow have end up damaging his iPhone with liquid/water content, then he cannot expect to repair/replace or fix the said device under warranty. The opposite party No. 3 has already made this explicitly clear in its warranty guidelines. The opposite party No. 3 never denied any sort of service or assistance to the complainant when he visited. On merits, the opposite party No. 3 denied that it never advertised that iPhone 7 Plus is water proof. The Complainant instead of understanding the technical difference is making malicious and defamatory comment stating that opposite party No. 3 is making misleading advertisements in order to mislead the public. The resistance level of handsets come down over time and due to the same it should be handled properly and not being negligent. In further reply, the opposite party No. 3 reiterated its version as pleaded in preliminary objections detailed above. After controverting all other averments, the opposite party No. 3 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence, his affidavit dated 13-8-2018 (Ex. C-1), photocopy of tax invoice (Ex. C-2), photocopy of box of mobile (Ex. C-3), photocopy of IP rating list (Ex. C-4) and photocopy of Job Sheet (Ex. C-5). In order to rebut the evidence of complainant, opposite party No. 2 has tendered into evidence affidavit dated 25-10-2018 of Parupkar Singh (Ex. OP-2/1). The opposite party No. 3 has tendered into evidence affidavit dated 9-10-2018 of Priyansh Poovanna (Ex. OP-3/1), photocopy of warranty condition (Ex. OP-3/2), photocopy of service report (Ex. OP-3/3), photocopy of photographs (Ex. OP-3/4), photocpy of conditions (Ex. OP-3/5 & Ex. OP-3/6) and affidavit dated 9-10-2018 of Priyansh Poovanna (Ex. OP-3/7). We have heared learned counsel for the parties and gone through the record. There is no dispute between the parties that complainant purchased mobile hand set I-phone 7+ 32 GB having IMEI No. 359160075932490 from opposite party 1 vide Invoice No. 01137 dated 19-7-2017 for Rs. 56,500/- (Ex. C-2). The mobile hand set in question became defective on 16-7-2018 and complainant approached authorised repair centre i.e. opposite party No. 2 for repair of hand set. The hand set in question is still lying with opposite party No. 2 vide Job Sheet Ex. C-5. A perusal of Job Sheet Ex. C-5 reveals that mobile hand set in question was received by opposite party No. 2 for repair under Apple Limited Warranty as mentioned in Service Report against the heading Service Type. Under the 'Diagnosis Remarks', it has been mentioned “No issue of data backup. In case found liquid damage, physical damage – unauthorized modification inside Customer have to pay Rs. 500 for Unit collection. The opposite party No. 2 in written reply has pleaded in para No. 3 of legal objections that on checking the hand set, opposite party No. 2 told the complainant that hand set is already water affected and is out of warranty. There is nothing mentioned in the above said Job Sheet that mobile hand set of complainant was found liquid/water damaged. The opposite parties have not placed on file even a single document to prove that mobile hand set of complainant is liquid/water damaged. Even otherwise also, as per opposite parties ( Ex. C-4) the model of handset in question is water resistant. On the one hand, it is the case of the opposite parties that said mobile was out of warranty being water damaged but on the other hand, it is the pleaded case of opposite party No. 3 i.e. manufacturer that I phone 7+ is splash, water & dust resistant. In para 2 in reply on merits, the opposite party No. 3 has pleaded that “The term “Splash, Water and Dust Resistant- Rated IP67 under IEC Standard 60529 means the IP in the rating refers to “ingress protection' or how well it protects against foreign material entering the enclosures. The first number in the IP67 rating is on a scale of 0 to 6 and indicates how well the device protects against incoming solid objects, such as dust or sand. The second numnber relates to water protection and is on a scale from 0 to 8. So, with an IP67 raiting, the new Iphones have the highest dust protection rating, and the second highest level of water protection, which is rated to be protected from immersion in water with upto a deapth of 1 meter for a period upto 30 minutes.” So, the pleas taken by the opposite parties are self contradictory and are not sustainable.Therefore, in such circumstances, opposite parties are bound to repair the mobile hand set in question under warranty. The opposite party No. 3 has admitted that opposite party No. 2 is service centre with whom the mobile is lying for repair and opposite party No. 2 has neither tendered any document in its evidence except affidavit of Priyesh Poovanna (Ex. OP-2/1) nor stated in pleadings or in said affidavit (Ex. OP-2/1) that any document or photographs or mobile hand set were ever handed over to opposite party No. 3. The complainant has purchased the mobile handset on 19.7.2017 and as per job sheet, (Ex.C-5), he reported the first problem in it on 16.7.2018 i.e. prior to 3 days from expiry of warranty period. It shows that he has used his mobile handset for more than 11 months without any difficulty. There is no document on record to prove any manufacturing defect in the mobile handset in question. Therefore, the complainant is not entitled to replacement or refund of price amount of mobile handset. As the mobile handset was within the warranty period when the first problem occurred in it as per job sheet Ex. C-5, therefore, the complainant is entitled to get his mobile handset repaired from opposite party Nos. 2 and 3. Hence, there is deficiency in service on the part of opposite parties No. 2 & 3 in not repairing the mobile hand set in question of complainant under warranty. In the result, this complaint is partly allowed against opposite parties No. 2 & 3 with Rs. 5,000/- as cost and compensation and dismissed qua opposite party No. 1. The opposite parties No. 2 & 3 are directed to repair the mobile hand set in question of the complainant under warranty without charging any amount. The compliance of this order be made by opposite parties No. 2 & 3 jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 31-1-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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