STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 28.04.2022
Date of final hearing: 17.09.2024
Date of pronouncement: 19.12.2024
First Appeal No.163 of 2022
IN THE MATTER OF:-
Shree Satyam Mobiles, Authorized Company Show-room, through its Partner Amit Gupta, Near Chandan Cake House, Sadar Bazaar, Sirsa, District-Sirsa. ....Appellant
Versus
- Jagsir Singh S/o Sh. Nachattar Singh, R/o Mirpur Khurd, Tehsil Sardulgarh, PO Mirpur Kalan, District Mansa (Punjab).
- Appsdaily Mobile Protection [insurer of the mobile set] through its authorised person, Shop No.67, New M.C. Market, Near Circular Road, Sirsa.
- Appsdaily Solutions Pvt. Ltd. (Regd. Office) D3137-39, Oberio Garden Estates, Chandiwali Farm Road, Andheri (E), Mumbai-400072.
- Apple India Pvt. Ltd. through its authorised person, 19th Floor, Concorde Tower “C” UP City, No. 24, Vital Mallya Road, Bangalore-560001, Karnatka. …..Respondents
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member
Argued by:- None for appellant.
Respondent No. 1 to 3 have already proceeded against ex-parte.
Ms. Ramanpreet Kaur, proxy counsel for Mr. Rahul Garg, counsel for respondent No.4.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
There is delay of 1187 days in filing of present appeal. To condone the same; application has been filed. From perusal of text of application, it becomes apparent that at the time of filing of this appeal, appellant had not gained anything by filing it, belatedly. It is settled law that Courts of Law should endeavor to decide the lis between the parties on merits, instead of throwing the cause of any litigant, overboard, on technical considerations like limitation. It is also settled law that liberal approach should be adopted in matters concerning condonation of delay (limitation) and acceptance of explanation projected in the application should normally be the criteria, unless said explanation is accentuated by ulterior motives and mala fide intention. In present case, no such mala fide intention or ulterior motive is deciphered. To the contrary, cause projected in application for condonation of delay and accompanying affidavit do constitute ‘sufficient cause’ as per Section 5 of Limitation Act. This being so; application seeking condonation of delay is allowed and delay in filing of this appeal is condoned.
2. Challenge in this Appeal No.163 of 2022 filed by appellant has been invited to legality of order dated 14.12.2018 passed by District Consumer Disputes Redressal Forum-Sirsa (In short “District Consumer Commission”) in complaint case No.77 of 2017, vide which complainant’s complaint has been allowed.
3. Factual matrix: Complainant purchased one mobile set make Apple Iphone 6S 16GB from OP No.1/dealer/appellant herein for Rs.49,900/- vide invoice No.22444 dated 23.02.2016 with one year guarantee/warranty. As per plea; OPs No.1 and 2 also convinced complainant to get insured mobile set with OP No.3/insurer against all risks and liability i.e. risk against theft, burglary, physical damage including fluid damage. In November-2016 mobile set of complainant was damaged as he was on bike ride, and unfortunately mobile set slipped out from his pocket; fell on road and its display/ screen was damaged and it became dead. Complainant approached OP No.1 (appellant) along with insurance of mobile set. OP No.1 on checking handset found it as damaged but put off the complainant and gave assurance that if he approaches OP No.2/insurer, it would redress his complaint. Complainant approached OP No.2/insurer; lodged complaint on 05.11.2016, upon which insurer/OP No.2 kept the mobile with it and charged Rs.2,495/- from him without any reason, despite that at the time of insurance; OP No.2/insurer assured that in future if his handset suffer any damage, then it would not charge any amount and he would be entitled for refund of amount. As per plea; OP No.2/insurer stated that mobile is completely dead and needs to be replaced with new one but since new mobile set is/was not available with OP No.2/insurer, he (complainant) was told to approach again, after 21 days. When he again approached OP No.2/insurer; it put off the matter and did not supply new mobile to him. He again approached OP No.2/insurer but it told to complainant that it will not keep any mobile set and it had never insured his mobile set on any occasion and it has no liability to replace/change his mobile set. It is pleaded that he also served legal notice upon OPs on 31.01.2017 but OP No.1/dealer/appellant herein has/had refused to receive notice intentionally and deliberately, whereas OP No.2/insurer in collusion with postal authorities forged the postal report by mentioning on it ‘address change’. OP No.3 after receipt of notice did not give any reply while OP No.4 replied to notice through email in a vague and casual manner by escaping itself from liability. By pleading negligence in service and unfair trade practice on the part of OPs and by asserting that he suffered harassment and financial loss, he filed complaint for replacement of mobile set and for compensation of Rs.2,00,000/-.
4. OP No.1/dealer/appellant did appeared through counsel but had not filed written statement and his defence was ‘struck off’ vide order dated 27.03.2018 of learned District Consumer Commission. Earlier, vide order dated 08.02.2018, learned District Consumer Commission proceeded ex-parte against OP No. 2 & 3.
5. OP No. 4/Apple India Pvt. Ltd. raised contest. In written defence; contents of complaint have been pleaded as incorrect by asserting that I-phones are sold by it through their authorized dealers; I-phones undergo strict quality test to ensure that the product maintain its high standard. Complaint is not maintainable against it (OP No.4). As per plea, entire claim is made against other OPs (No. 1, 2 & 3). Complaint has been filed to mislead the forum. It is pleaded that when consumer cause damage to product by external factors which are not associated with its manufacturing/inherent conditions and which are in complete disregard to and in breach of warranty policy of manufacturer; then he/she cannot claim relief under Consumer Protection Act. OP No. 4 has specified the warranties in its written version and pleaded that complainant’s mobile phone was damaged by his own carelessness, rendering it out of warranty. It is pleaded that when warranty explains that in order to get replacement or service of I-phone within the warranty period; complainant would have had to get his I-phone inspected by its authorised service provider, but he has not produced any documentary evidence to show that his I-phone was inspected by Apple authorised service provider of OP No. 4/manufacturer. The claims are not identified and complaint is liable to be dismissed. Complainant knows that his I-phone has/had been damaged and it could not be repaired under warranty as he had breached warranty provisions. It is pleaded that complainant has concealed material facts that damage to his I-phone was solely attributable to his own action which is/was in breach of terms and conditions of Apple warranty. Further, it is pleaded that manufacturer cannot be made liable until it is proved by adducing expert evidence that there was any manufacturing defect and present case is not related to any manufacturing defect. It is pleaded that complainant had met with accident in November-2016 and device’s display was damaged; since device was allegedly insured by OP No.3/insurer, so liability is of OP No.3 to repair or replace it, as per terms of insurance policy agreed between OP No.3 and complainant. OP No.4 never tried to deny any service to complainant, in fact, he never complained about i-Phone being faulty of having manufacturing defects in it. It is further submitted that as per warranty policy, complainant should visit an Apple Authorized Service Provider to diagnose his device and seek for its repair or replacement. However, he did not visit any service provider and allowed third party intervention rendering device out of warranty. Basically, on these pleas, dismissal of complaint has been prayed.
6. Complainant as well as OP No. 4 led their respective evidence, oral as well as documentary.
7. On analyzing the same; learned District Consumer Commission-Sirsa has allowed complaint vide impugned order dated 14.12.2018 and directed OPs No.1 to 3 to get mobile of complainant repaired without any cost and to make it defect free, even by replacing any part and hand over mobile handset to complainant within 15 days from date of receipt of copy of order. In case, it is found that mobile handset is not repairable, then OPs No.1 to 3 shall be liable to give replacement of mobile with new one of same make and model within further period of 15 days or in the alternate to refund price of mobile in question. OP No.2 was also directed to refund Rs.2,495/- charged by it, to complainant. Rs.3000/- has been awarded to complainant as compensation and litigation expenses.
8. Feeling aggrieved; OP No.1/dealer has filed this appeal. In proceedings of this appeal, respondents No. 1 to 3 were proceeded against ex-parte vide order dated 28.11.2023 of this Commission. Record of complaint case too has been perused. None has appeared on behalf of appellant/dealer and consequently, there has been no assistance from appellant side, so far as text of memorandum of this appeal is concerned, so, this Commission proceeds ahead to dispose of this appeal by itself perusing the averments raised in memorandum of appeal.
9. It has been stated in memorandum of this appeal by appellant/OP No. 1/Shree Satyam Mobiles that impugned order dated 14.12.2018 is illegal. Major fact has not been properly appreciated by learned District Consumer Commission that appellant herein had sold mobile set to complainant in sealed packed condition, as it has/had received from manufacturer. There was no warranty given by appellant/dealer to complainant. Guarantee/warranty, if any, is given by manufacturer alone, in case, there is any manufacturing defect in the purchased mobile handset, as it has been so mentioned in the Bill No. 22444 of 23.02.2016. Appellant never asked complainant to get insurance cover qua purchased mobile set, as it is not an authorized agent of any insurance company. It is pleaded that Bill of subject mobile mentions that all guarantee/warranty will be provided by the company. Inter alia on these pleas; acceptance of appeal has been prayed.
10. On the other hand; respondent No. 4 has urged that no liability has been fastened upon manufacturer as there was no manufacturing defect in the subject mobile phone. Damage to it has/had been caused by complainant himself due to mishandling of handset which allegedly fell from his pocket. It is urged that on given facts there is no warranty attracted for subject mobile handset.
11. Admittedly, subject mobile phone set has/had been purchased from appellant/dealer on 23.02.2016 by complainant-Jagsir Singh for Rs.49,900/- as it is so evident from perusal of invoice dated 23.02.2016-Ex.C-6. Complainant has alleged that his mobile phone handset got damage due to its fall from his pocket in month of November-2016. Its display screen suffered damage and it became completely dead. There is no plea that damage mobile handset was ever handed to appellant/dealer for repair purpose by coordinating with manufacturer. Even manufacturer/Apple India in its written version has specifically stated that damaged mobile phone was never brought by complainant for its inspection by Apple authorized service provider. As per plea of complainant, he had handed over the damage mobile phone handset to OP No. 2/insurer on 05.11.2016. Consequently, only insurer/respondent No. 2 herein was to explain as to what had happened thereafter on allegedly receiving mobile handset from complainant, but said respondent No. 2/insurer has chosen not to raise any contest to the complaint by not appearing, either before learned District Consumer Commission or in proceedings of this appeal. In wake of this fact, there is gross deficiency in service only on the part of OPs No. 2 (insurer-Appasdaily Mobile Protection). OP No.1-dealer/appellant herein has/had only sold the mobile handset to complainant in sealed packet as it has/had received from manufacturer. Complainant had not delivered the damaged mobile handset to OP No. 1/dealer/appellant herein. Matter does not end here. Sale Invoice Ex.C-6 dated 23.02.2016 expressly recites by mentioning attention that “Mobile will carry only warranty, not guarantee and warranty would be provided only by company’s service centre”. Admittedly, appellant is only a dealer and not service centre. Hence, appellant/dealer is completely is absolved of any liability with regard to damaged mobile phone handset. This being so, collectively, at judicial pedestal, there would be no liability of dealer (OP No. 1/appellant) to answer any claim of complainant, because of damage caused to mobile phone set due to its fall from complainant himself. The learned District Consumer Commission has committed a fallacy to hold appellant herein/dealer being liable along with others OPs No. 2 & 3. There is neither any deficiency in service on the part of appellant/M/s Shree Satyam Mobile nor any unfair trade practice on its part in view of above factual scenario. Accordingly, findings of learned District Consumer Commission in its order dated 14.12.2018, against appellant herein/dealer cannot legally sustain and same are hereby set aside qua appellant herein/dealer only. Complainant can only raise his grievance qua other OPs, who too have been held liable by learned District Consumer Commission in its order dated 14.12.2018.
12. As a sequel thereto, this appeal of appellant/dealer is allowed. Impugned order dated 14.12.2018 passed by learned District Consumer Commission-Sirsa is hereby set aside qua appellant/dealer alone. It would continue to hold its light of day, so far as other OPs are concerned who have been held liable by learned District Consumer Commission-Sirsa and complainant can legally enforce the impugned order dated 14.12.2018 qua them by adopting due recourse of law.
13. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
14. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
15. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
16. File be consigned to record room.
Date of pronouncement: 19th December, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
