DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA

C.C. No. 305 of 12-11-2018

Decided on : 31-03-2022

Jeevanjot Singh Dhaliwal, aged about 28 years S/o Sh. Gurlal Singh, R/o Banwala Road, Malout Road, Village Lambi, District Sri Mukatsar Sahib.

........Complainant

Versus

1. Jaura Stablizer, Office near imperial Motors, Street No. 6, Nai Basti, Lower Mall Road, Bathinda, through its Prop/Partner (deleted vide order dated 22-1-19)

2. B2X Service Solutions India Pvt. Ltd., City Centre, Mall, Shop No. 6, Ground Floor, Civil Lines, Bathinda, through its Prop/Partner/Manager

3. Apple India Pvt. Ltd., 9^th Floor, Concorde Tower, 'C' UB City No. 24, Vittal Mallya Road, Bangalore 560001 (Karnataka) through its Managing Director

4. One Assist Consumer Solutions Pvt. Ltd., Acme Plaza, Opp. Big Cinema, Anderi-Kurla Road, Andheri (E), Mumbai 400 059, through its MD.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh. Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. A.S. Sekhon, Advocate

For opposite parties : OP No. 1 deleted.

Sh. Lalit Garg, Advocate, for OP No. 2

Sh. B L Sachdeva, Advocate, for OP No. 3.

Sh. Sanjeev Kumar, Advocate, for OP No. 4.

ORDER

Kanwar Sandeep Singh, President

1. The complainant Jeevanjot Singh (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 M/s. Jaura Stablizer and others (here-in-after referred to as opposite parties).

2. Briefly stated the case of the complainant is that he purchased a mobile handset make Apple I-Phone 6 bearing IMEI NO.355900069458679 vide Invoice/Bill No. 811 dated 25.11.2014 for Rs.53,500/- from opposite party No. 1 against cash payment. The opposite party No.1 also provided one year guarantee in case of any defect in the mobile handset on behalf of opposite party No. 3 i.e. manufacturer. The opposite party No. 2 is the authorized service center of opposite party No.3.

3. The complainant alleged that after purchase, he started using the mobile hand set for his personal use, but said mobile set did not prove to be of good quality rather it started creating problems, as such the same was replaced by the opposite parties with new one, having IMEI No. 355396072550943 vide Job Sheet dated 31.3.2016. The opposite parties No. 2&3 assured the complainant that there will be no problem in the new handset.

4. It is alleged that said mobile hand set was got insured by opposite party No. 1 with opposite party No. 4 as opposite party No. 3 is in associate with the opposite party No. 4 for insurance. The opposite party No. 2 is the local service centre.

5. The complainant alleged that handset was damaged and he lodged complaint/claim with opposite parties No. 1&2 who further lodged the claim and service request No. 1539679 was generated. The complainant uploaded all the required documents as per e-mail dated 5.9.2016. Vide e-mail dated 7.9.2016, it was confirmed that the documents uploaded have been verified and the damaged handset would be picked up shortly after completing the formalities. Thereafter, the complainant was asked to submit his i-phone with opposite party No. 2 and he deposited the handset with opposite party No. 2 vide Job sheet No.BAT210916250589 dated 21.9.2016 which was duly acknowledged by the opposite parties vide e-mail 24.9.2016. The claim of the complainant was sent for further processing vide another e-mail dated 26.9.2016.

6. It is alleged that vide e-mail dated 7.11.2016, it was conveyed to the complainant that the claim was repudiated as per policy saying that "IMEI of the old set was not updated within time as the unit has been changed on 31.3.2016 and the intimation of the change of IMEI has been done on 23.7.2016 through e-mail". The repudiation is totally wrong, illegal, against the principles of natural justice and is having no binding effect upon the rights of the complainant as the complainant was never supplied any terms and conditions of the insurance policy by the opposite parties and the opposite parties No. 2&3 were duty bound to inform the Insurance Company about the change of IMEI. In case of any lapse on the part of opposite parties No. 2&3, the complainant cannot be penalized.

7. It is further alleged that the complainant repeatedly requested the opposite parties to provide new mobile handset or in the altetnative to refund total amount of Rs.53,500/-, but to no effect. Due to above said illegal and arbitrary act of the opposite parties, the complainant is suffering great mental tension, botheration, harassment, loss of reputation besides being deprived of using the mobile hand set despite spending huge amount of Rs.53,500/- for purchasing the aforesaid i-phone. The complainant claims replacement of mobile set in question with new one and compensation to the tune of Rs. 50,000/-.

8. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to replace the aforesaid defective mobile handset with new one, having same price of Rs.53,500/- or in the alternative to refund the price of the mobile hand set and also to pay to complainant compensation to the tune of Rs. 50,000/- in addition to Rs. 5500/- as litigation expenses.

9. On the statement of learned counsel for complainant, name of opposite party No. 1 was deleted from the array of the parties vide order dated 22-1-19.

10. Upon notice, opposite parties appeared through their respective counsel and filed written reply. The opposite party No. 2 in its written reply raised preliminary objections that the complainant has not approached this Commission with clean hands and has concealed the material facts and filed the present complaint to extort money from opposite party No. 2. That the present complaint has been devised as a tool to harass and humiliate the opposite party No. 2 by dragging them in the court. That the complaint is not maintainable as no cause of action has ever arisen

11. On merits, the opposite party No. 2 has pleaded that complainant visited service centre i.e. opposite party No. 2 for the first time on 20-3-2015 for the said hand set which was in warranty at that time with the issue “Sometimes proxymity sensor not working, unit heat, lower battery life'. On the advice of executive of opposite party No. 2, complainant submitted the handset with opposite party No. 2 vide Job Sheet No. BAT20031568000. After doing MRI Run and diagnosing the problem, engineer found that there was a problom with software in the handset for which engineer of opposite party No. 2 reinstalled the software and found device in proper working condition. The complainant took the delivery of the handset on 24.03-2015.

12. It has been further pleaded that said handset was again submitted in the service centre i.e. opposite party No. 2 through Insurance Company i.e. opposite party No. 4 on 10-03-2016 with the issue that "Device is not powering on and device is liquid damage. Job sheet was created for the said handset on 10-03-2016, itself No. BAT100316176562. The said jobsheet was created under the out of warranty case because warranty policy was already expired as per manufacturing company i.e. opposite party No.3. The opposite party No. 2 gave the estimate price to the Insurance Company for replacing the handset and said estimate was approved by opposite party No.4. After getting approval and payment for replacing the handset from opposite party No. 4, opposite party No. 2 replaced the handset and handedover to the Insurance Company with the delivery report on 31-03-2016.

13. The opposite party No. 2 pleaded that opposite party No. 2 received the handset through opposite party No. 4 on 21-09-2016 in fully damaged condition and not powering on. Job Sheet was created on the same day vide No. BAT210916250589. The opposite party No. 2 gave the estimate price for replacing the handset to opposite party No. 4 but the approval was declined by opposite party No. 4 due to their internal policy. The said job sheet was closed by mentioning that Insurance Company (opposite party No.4) declined the case for which delivery report was also sent along with the handset to the insurance company. The opposite party No. 2 has no relation with opposite party No. 4. The case was declined by the Insurance Company i.e. opposite party No. 4 due to their internal process which was not told to opposite party No. 2 because opposite party No. 2 is the authorized service provider of apple india Pvt. Ltd., i.e. opposite party No. 3. The opposite party No. 2 has no links with opposite parties No. 1 & 4.

14. It has been pleaded that there is no liability of opposite parties No. 2 & 3 to repair the handset of the complainant under warranty because said handset was out of warranty as per manufacturing company i.e opposite party No. 3. Liability was of opposite party No. 4 because opposite party No. 4 is the Insurance Company who is providing services to the complainant by receiving premium amount of insurance from the complainant. The handset of the complainant came to the service centre of opposite party No. 2 many times for which services were given within warranty as well as out of warranty all the time. There was no liability on opposite party No. 2 to replace/repair the handset under warranty once one year warranty expired as per manufacturing company i.e. opposite party No. 3. Mobile handset was purchased by complainant on 25-11- 2014 for which company is only liable to provide services under warranty till 24-11-2015 and for which opposite party No. 2 provided the services to the complainant.

15. The opposite party No. 2 further pleaded that opposite party No. 2 is ready to help the complainant but in out of warranty case if complainant or opposite party No. 4 do not pay the charges for replacing the handset then opposite party No. 2 cannot give services. Since the said handset was out of warranty, so opposite party No. 2 is legally bound with the terms and condition of opposite party No. 3. Hence, there is no deficiency in services because said handset was out of warranty case and complainant and insurance company i.e. opposite party No. 4 is not ,ready to pay amount of replacement of handset.

16. The opposite party No. 3 in its separate written reply pleaded that complainant clearly dishonestly seeks undue benefits and unjust enrichment by making patently false and unsubstantiated claim against opposite party No. 3. The complainant is guilty of materially concealing and suppressing material facts and has approached this Commission with unclean hands. The instant complaint is an absolute abuse of process of law. The opposite party No. 3 takes all necessary measures in compliance with the law and highly values its customers and takes necessary action to ensure that the customer is satisfied and receives high-quality services and products. The iPhones sold in India by opposite party's No. 3, authorized dealers/ resellers are known for their cutting-edge technology and utmost customer satisfaction.

17. The opposite party No. 3 has taken preliminary objections that the contentions, submissions and allegations in the complaint are incorrect, vexatious, misleading and denied except which specifically admitted hereinafter. That the complaint is rnalafide one, devoid of merit and contradictory to the established principles of law. The instant complaint has been devised to mislead this Commission.

18. 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.

19. It has been further pleaded that after the complainant purchased the said iPhone 6, 16 GB Grey bearing IMEI No. 355900069458679 and Serial No. C36NNCW0G5MN from opposite party No. 1 on 19-11-2014 for the cost of Rs.53,500/-, he took an insurance cover on his iPhone from opposite party No. 4 regarding which opposite party No. 3 was not aware. The complainant approached opposite party No. 2 on 10-03-2016 for some alleged issues "the device not powering on". The opposite party No. 2 diagnosed the device and found that device had liquid damage. Since the device was under warranty, even though liquid damage come under exception, the complainant was provided with under warranty service as exceptional case and the said device was replaced with new iPhone 6 bearing IMEI No. 355396072550943 and the same was handed over to the complainant. In the Service Report dated 10-03-2016, it is clearly mentioned that the device is liquid damaged. It is mentioned in copy of delivery report dated 10-03-2016 that "unit replaced and resolved and old IMEI No.355900069458679 and new IMEI No. 355396072550943".

20. The opposite party No. 3 has further pleaded that the complainant approached opposite party No. 2 on 21-09-2016 for the issues regarding the device being fully damaged internally & physically. The opposite party No. 2 diagnosed the device and informed the complainant that physical damage cannot be covered under the warranty and hence this device is rendered out of warranty. The opposite party No. 2 offered an out of warranty paid service to which the complainant denied. In Service Report dated 21-09-2016, it is clearly mentioned that the device had physical damage and the unit was fully damaged internally. Thereafter complainant never approached opposite party No. 2. The complainant has breached the warranty by violating the said terms and conditions as per warranty provisions clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause; issued by opposite party No. 3. The physical damages are strictly not covered under the warranty prescribed by opposite party No. 3. The complainant was provided with exception even after the device having been found with liquid damage, still the device was replaced with new iPhone under warranty at free of cost.

21. It has been further pleaded that purchase date was 19-11-2014, so the warranty expired on 18-11-2015. During this long period the device had no issues and it worked smoothly. This is proof enough to show that the complainant himself has admitted having raised the issue after the expiry of the warranty. So, this complaint is not maintainable.

22. The opposite party No. 3 has further pleaded that opposite party No. 3 does not give any sort of insurance on its products either directly or indirectly via any third party. The opposite parties No. 1 & 4 have admittedly issued an insurance cover to the complainant's iPhone, hence they are liable to cover the said damaged iPhone of the complainant. There is no privity of contract between opposite party No. 3 and opposite party No. 4. The complainant has comfortably used his device for more than one year from the date of purchase i.e. 19-11-2014 and alleging that the device having manufacturing defect, is irrelevant claim. The opposite party No. 3 never denied any sort of service or assistance to the complainant whenever he visited them. So, opposite party No. 3 cannot be held liable for any compensation to the complainant for his own acts and omission. Complainant approached opposite party No. 2, an authorized service provider of opposite party No. 3 on 10-03-2016 for some alleged issues regarding "the device not powering on". The opposite party diagnosed the device and found the device had liquid damage. Since the device was under warranty, even though liquid damage come under exception, the complainant was provided with under warranty service as exceptional case and the said device was replaced with new iPhone 6 bearing IME1 No. 355396072550943 and the same was handed over to the complainant. The complainant approached opposite party No. 2 on 21-09-2016 for the issues regarding device being fully damaged internally & physically. The opposite party No. 2 diagnosed the device and informed the complainant that physical damage cannot be covered under the warranty and hence this device is rendered out of warranty. The opposite party No. 2 offered an out of warranty paid service to which the complainant denied. Thereafter the complainant never approached opposite party No. 2.

23. It has been further pleaded that whenever the complainant visited, the authorized service provider of the opposite party No. 3 for any issue in the device, they have provided the solution for the same. After controverting all other averments, the opposite party No. 3 prayed for dismissal of complaint.

24. The opposite party No. 4 in its separate written reply raised preliminary objections that the complaint is false, frivolous, vexatious and abuse of process of this Commission. That the complaint does not disclose any cause of action and consumer dispute. That this Commission has no jurisdiction to entertain the complaint. There is no deficiency in service or negligence on the part of opposite party No. 4. The complainant failed to give intimation to the Insurance Company within stipulated period of 30 days regarding change in IMEI Number. The opposite party No.4 is merely a service provider which arranged the insurance of the mobile handset of the complainant through National Insurance Company Ltd. and thus acted as the facilitator in registering and processing of the claim with the Insurance Company.That the present complaint is bad for non-joinder of necessary party i.e. National Insurance Company Ltd. with which the mobile handset of the complainant was insured. Settlement of the claim was at the sole discretion of the said insurance company. The claim of complainant was rejected by the insurance company. Thus, in absence of the said insurance company, no effective order can be passed in the matter. That the opposite party No.4 dispute and deny its liability to pay any claim. That the opposite party No. 4 was only required to facilitate the registering and processing of the claim of the complainant with the insurance company and it was the insurance company which is to settle the insurance claim of the complainant. In the present case, the opposite party No.4 provided the service to the complainant by processing the claim of the complainant to the insurance company. It is the National Insurance Company which is to settle the claim.

25. It has been pleaded that the iPhone 6 mobile having IMEI No. 355396072550943 was insured with the National Insurance Company Ltd. through opposite party No. 4. As per the terms and conditions entered between the complainant and opposite party No. 4, the opposite party No.4 was only to facilitate the registering and processing the claim of the complainant with the Insurance Company with which the mobile handset in question was insured. Claim settlement was at the sole discretion of the National Insurance Company Ltd. The liability of opposite party No. 4 is limited only to the extent of the Insurance Fee.

26. It has been further pleaded that on 05.09.2016, the complainant filed damage claim with respect to the mobile handset in question. On 07.09.2016 the documents were received and on 24.09.2016, the handset in question was picked-up. Repair estimation of Rs. 24,750/- from Authorized Service Centre was received and the same was forwarded to the Insurance Company on 27.09.2016 for approval. On 07.11.2016, the opposite party No. 4 received intimation from the Insurance Company that the claim of the complainant has been rejected with the reason 'As per policy terms attached for your reference, change in IMEI needs to be intimated to the insurance company within 30 days of the change in IMEI. In this case, the unit has been changed on 31.03.2016 and intimation of change in IMEI has been done on 23.07.2016 through mail. This case cannot be considered." The opposite party No. 4 duly communicated the said facts to the complainant and delivered unrepaired handset to him.

27. It has been further pleaded that as per clause Transfer of policy in the standard terms and conditions, policy is not transferable. However in case of change of device, due to new purchase, change in device IMEI during Warranty Repair, during the policy tenure by the customer, cover shall he extended to the new handset for the remaining tenure. Extension of such coverage to new device will be eligible and affected only upon notifying the device change and new device IMEI/ Serial number and other device details to OneAssist within 2 days of purchase of new device. Cover for old handset will be terminated. All other terms applicable for new handset as well, subject to no claim on the old phone. It is the responsibility of the Customer to ensure that all the said information is made available to OneAssist. OneAssist will he able to activate the insurance cover on new device only after receiving the new device details from customer. In case of non-receipt of the required information, any Insurance claim on the said handset may be declined by the Insurance Company at its discretion. The rejection of the claim of the complainant was proper, legal, valid and justified.

28. On merits, the opposite party No. 4 reiterated its stand as taken in preliminary objections and detailed above.

29. In support of his complaint, the complainant has tendered into evidence his affidavit dated 12-11-2018 (Ex. C-1), photocopy of bill (Ex. C-2), photocopy of delivery report (Ex. C-3), photocopy of e-mails (Ex. C-4 & Ex. C-5), photocopy of service report (Ex. C-6) and photocopy of e-mails (Ex. C-7 to Ex. C-9).

30. In order to rebut the evidence of complainant, the opposite party No. 2 tendered into evidence affidavit dated 13-12-2018 (Ex. OP-2/1), photocopy of service reports (Ex. OP-2/2, Ex. OP-2/4, Ex. OP-2/6), photocopy of delivery reports (Ex. OP-2/3, Ex. OP-2/5, Ex. OP-2/7) and photocopy of terms and conditions (Ex. OP-2/9).

31. The opposite party No. 3 tendered into evidence affidavit dated 14-12-18 of Priyesh Poovanna (Ex.OP-3/1) and photocopy of terms and conditions (Ex. OP-3/2 to Ex. OP-3/6).

32. The opposite party No. 4 tendered into evidence photocopy of terms and conditions (Ex.OP-4/1) and affidavit dated 24-12-18 of Sachin Jha Thakur (Ex. OP-4/2).

33. The learned counsel for the parties reiterated their stand as taken in their respective pleadings.

34. We have heard learned counsel for the parties and gone through the record.

35. In the case in hand, these are admitted facts of the parties that complainant purchased Apple I-Phone 6 bearing IMEI No. 355900069458679 vide Invoice/Bill No. 811 dated 25.11.2014 for Rs.53,500/- from opposite party No. 1 against cash payment. The said mobile hand set became defective and complainant lodged claim with the opposite parties and said handset was replaced by the opposite parties with new one, having IMEI No. 355396072550943 vide Job Sheet dated 31.3.2016, under warranty.

36. New/2nd handset was also damaged and complainant lodged complaint/claim with opposite parties and deposited his handset with opposite party No. 2 vide Job sheet No. BAT210916250589 dated 21.9.2016. Repair estimate for Rs. 24,750/- of Authorized Service Centre was forwarded to the Insurance Company on 27.09.2016 for approval. Warranty period of mobile hand set in question had already expired. The opposite parties vide e-mail dated 7.11.2016, conveyed to the complainant that his claim was repudiated as per policy because IMEI of the old set was not updated within time as the unit has been changed on 31.3.2016 and the intimation of the change of IMEI has been done on 23.7.2016 through e-mail".

37. The opposite party No. 4 vide e-mail dated 7-11-16 (Ex.C-9) intimated the complainant that his claim has been denied/repudiated on the ground that change of IMEI needs to be intimated to the Insurance Company within 30 days, but in this case unit has been changed on 31-3-2016 and intimation of change in IMEI has been done on 23-7-2016 through mail.

38. Ex. C-8 is the e-mail dated 26-9-2016 vide which opposite party No. 4 informed the complainant that repair estimate to the tune of Rs. 24,750/- has been received from authorised service centre and that they are sending the documents and the estimate to their insurance partner for approval.

39. Ex. OP-4/1 is the 'Standard Terms and Conditions' placed on file by opposite party No. 4. At page 8 under the heading “Mandatory Devices related Information for activating Insurance Cover” it has been mentioned :-

    It is mandatory for the Customer to provide the following device related information to OneAssist for the purpose of activating Insurance Cover :

    (a) IMEI No.

    (b) Make and model of the handset

    (c) Invoice Value

    (d) Invoice date

40. Whereas OneAssist will make all efforts to collect the above information from the customer. It is the responsibility of the customer to ensure that all the said information is made available to OneAssist. OneAssist will be able to activate the insurance cover on the said device only after receiving the above mentioned information. In case of non-receipt of the above mentioned information, any insurance claim on the said handset may be declined by the Insurance Company at its discretion.

41. Therefore, the above mentioned terms and conditions of opposite party No. 4 makes the position crystal clear. The opposite party No. 4 in its written reply has pleaded in para No. 4 of preliminary objections that complainant failed to give intimation to the Insurance Company within stipulated period of 30 days regarding change in IMEI Number. The opposite party No. 4 has also pleaded that it is merely a service provider which arranged insurance of the mobile handset of the complainant through National Insurance Company Ltd., Vide e-mail Ex. C-8, the opposite party No. 4 intimated the complainant that repair estimate to the tune of Rs. 24,750/- has been received from authorised service centre and that they are sending the documents and the estimate to their insurance partner for approval. Hence, the pleadings of the opposite party No. 4 are belied by their own terms and conditions (Ex. OP-4/1) as detailed above.

42. It is proved on file that complainant has no direct dealing with Insurance Company and opposite party No. 4 arranged insurance being its insurance partner and dealing on behalf of complainant. Accordingly, as per terms and conditions of insurance, it was the responsiblity of opposite party No. 4 to intimate the Insurance Company regarding change of IMEI Number of iPhone of complainant. The opposite party No. 4 has not produced any document on file to prove that Insurance Company ever contacted/sent any e-mail to complainant directly or provided any alleged terms and conditions of insurance policy to complainant. The whole evidence placed on file by the parties reveal that each and every action with regard to insurance has taken place through opposite party No. 4 only. No documents issued by alleged Insurance Company has been brought on file by opposite party No. 4.

43. As per Delivery Report (Ex. C-3), name of opposite party No. 4 is entered as 'customer'. From the pleadings of opposite parties No. 2 & 3, it becomes clear that opposite party No. 4 provided the insurance cover of phone in question from their own Insurance company/Insurance partner. Delivery Report dated 31-3-2016 (Ex. C-3) proves that old phone was replaced with new phone and new serial number and new IMEI number of the replaced device was also intimated by opposite party No. 2 to opposite party No. 4. So, it was the duty of opposite party No. 4 to provide required information to their Insurance company/Insurance partner in time and complainant is not at fault at all. It is admitted fact that phone was in possession of opposite party No. 4 and opposite party No. 4 has not produced any documents in evidence regarding handing over said phone to complainant as argued. Hence, there is deficiency in service on the part of opposite party No. 4 in not sending/intimating IMEI No. of mobile handset of complainant to Insurance Company within stipulated period for which complainant should not be made to suffer.

44. In the result, this complaint is partly allowed with Rs.5,000/- as cost and compensation against opposite party No. 4 and stands dismissed qua opposite parties No. 2 & 3. The opposite party No. 4 is directed to get the mobile phone in question of the complainant replaced with new one of the same model i.e. iphone 6, free of cost OR pay Rs 53,500/- being the cost of defective mobile hand set in question to complainant.

45. The compliance of this order be made by opposite party No. 4 within 45 days from the date of receipt of copy of this order.

46. The complaint could not be decided within the statutory period due to heavy pendency of cases.

47. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    31-3-2022

    (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member

     

    (Paramjeet Kaur)

    Member