DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT, AT AMRITSAR, PUNJAB.

Complaint Case No : RBT/CC/2018/7.

Date of Institution   : 02.01.2018/29.11.2021.

Date of Decision    : 03.08.2022.

Rahul son of Sh. Varinder Kumar resident of House No. 34, VPO Khasa Bazar, Amritsar.     

                …Complainant Versus

1.M/s R.S. Collection, having its shop at 60-A, Link Road, Landa Bazaar, Near Brother Electronic, Amritsar through its Authorized Signatory. 

2.B2X Service Solutions India Private Limited, SCO No. 29, National Shopping Complex, Amritsar through its Authorized Signatory. 

3.Apple India Pvt. Ltd., 19th Floor, Concorde Tower C, UB City No. 24, Vittal Mallya Road, Bangalore 5600001, Karnataka.     

                 …Opposite Parties

Complaint Under Section 12 & 13 of the Consumer Protection Act. 

 

Present: Sh. Anil Bhatia Adv counsel for complainant.

Opposite party No. 1 exparte.

None for opposite party No. 2.

Sh. Munish Menon Adv counsel for opposite party No. 3.

Quorum:-

1. Sh. Ashish Kumar Grover : President

2.Smt. Urmila Kumari : Member

 

(ORDER BY ASHISH KUMAR GROVER, PRESIDENT):

1. The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The complainant has filed the present complaint Under Section 12 & 13 of the Consumer Protection Act against M/s R.S. Collection and others (hereinafter referred as opposite parties).

2. Brief facts of the case are that the complainant purchased one Apple iPhone 6S, Colour Rose Gold having EMI No. 353314073685743 for total consideration of Rs. 47,000/- from the opposite party No. 1 on 6.2.2016 and the complainant also purchased apple care protection plan and paid Rs. 4,500/- on 2.2.2017 and extended warranty of the above said Apple iPhone for another one year. It is further alleged that on 3.10.2017 the above said iPhone got power related problem and the same was submitted before the opposite party No. 2 to repair the same and the same was delivered after getting repaired on 11.10.2017. It is further alleged that on 12.10.2017 the above said iphone again developed the same problem and the same was submitted before the opposite party No. 2 which was delivered to the complainant on 24.10.2017 after repair at 5:39 PM in the evening. It is alleged that on the same day i.e. 24.10.2017 after about 10 minutes the above said iPhone developed the same problem and the complainant again submitted with the opposite party No. 2 but this time the above said iPhone delivered to the complainant without repair by stating that the reason with battery drainage issue and the opposite party No. 2 told the complainant that the said iPhone cannot be repaired under warranty and the complainant will have to pay the charges for the same. Thereafter, the complainant number of times approached the opposite parties but they flatly refused to entertain the genuine request of the complainant which amounts to deficiency in service on the part of opposite parties. Hence, the present complaint is filed for seeking the following reliefs.- 

i)To refund the amount of Rs. 47,000/- cost of mobile and Rs. 4,500/- of protection plan. 

ii)To pay Rs. 1,50,000/- on account of compensation and Rs. 25,000/- on account of litigation expenses. 

3. None appeared on behalf of opposite party No. 1 despite due service, as such the opposite party No. 1 was proceeded against vide order dated 6.3.2018.

4. Initially on 19.2.2018 Sh. Navjot Singh Advocate appeared and filed power of attorney on behalf of opposite party No. 2. The opposite party No. 2 filed written version on 6.3.2018. In the written version the opposite party No. 2 has raised preliminary objections interalia on the grounds of maintainability, no cause of action, complainant not come with clean hands and suppressed material facts,   On merits, it is submitted that the complainant brought the above said iPhone in the service centre of opposite party No. 2 for repair and the same was sent to the opposite party No. 3 at the same time and a Loaner Device bearing Serial No. FFMS6LP5G5MQ was issued to the complainant and after thorough examination the mobile set was returned by the opposite party No. 3 with the remarks that the Unit is Tampered one and this intimation was duly given to the complainant vide an E-mail message on 4.12.2017 and also a whatsapp message was sent by the Centre Manager, Anuj Sharma to the complainant and it was specifically mentioned that the complainant has not returned the Loaner Device bearing Serial No. FFMS6LP5G5MQ which was issued by the opposite party No. 2 against the mobile phone set at the time when he deposited his mobile set with them for repair. The mobile set in question was sent to the opposite party No. 3 and is lying in their custody. All other allegations are denied and there is no deficiency in service on its part and prayed for the dismissal of complaint. 

5. Upon notice of this complaint, the opposite party No. 3 appeared and filed written version by taking preliminary objections interalia on the grounds that the present complaint is false and frivolous. That the consumers, who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Act. It is further alleged that the alleged damage caused to the iPhone by external factors which are not associated with the manufacturing/inherent condition of the product and as such acts which disregard the warranty policies of manufacturers. It is admitted that the complainant purchased the said iPhone from the opposite party No. 1 on 6.2.2017 for a sum of Rs. 47,000/- and also had Apple Protection Plan for the sum of Rs. 4,500/-. It is further alleged that the complainant approached the opposite party No. 2 on 3.10.2017 for the alleged issues regarding the battery drain issues in his phone and the opposite party No. 2 found that the device had top panel crack, marks on lower panel near head set jack and repaired the mobile set and returned to the complainant in working condition. It is further alleged that the complainant approached the opposite party No. 2 on 12.10.2017 with the same problem and the opposite party No. 2 diagnosed and found heavy dents and marks on the device and the same was repaired and returned to the complainant in working condition. The complainant again approached to the opposite party No. 2 with the same issues in the device and the opposite party No. 2 found that the device had heavy dents and scratches on it which amounts to physical damage, so  it cannot be covered under the warranty, as such the complainant is liable for out of warranty paid service but thereafter the complainant never approached the opposite party No. 2. It is further alleged that the complainant has violated the terms and conditions of the warranty provision as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, hence the device was rendered out of warranty. It is further submitted that liability of a manufacturer arises only and only when there is inherent defect in the product and manufacturer cannot be made liable and until it is proved by adducing expert evidence. On merits, the opposite party No. 3 denied the all allegations of the complainant and prayed for the dismissal of complaint. 

6. In order to prove his case the complainant tendered into evidence his own affidavit Ex.C-1, copy of service report Ex.C-2, copy of the bill Ex.C-3, copy of the delivery report Ex.C-4 & Ex.C-5, copy of invoice Ex.C-6 and closed the evidence. 

7.   In order to rebut the case of the complainant the opposite party No. 2 tendered into evidence affidavit of Sh. Anuj Sharma Ex.O.P2/1 alongwith documents Ex.O.P2/2 to Ex.O.P2/9 and closed the evidence. 

8. The opposite party No. 3 tendered into evidence affidavit of Sh. Priyesh Poovanna Ex.O.P3/1, copy of terms and conditions of warranty Ex.O.P3/2, copy of the service report dated 3.10.2017 Ex.O.P3/3, copy of service report dated 12.10.2017 Ex.O.P3/4, copy of the service report dated 24.10.2017 Ex.O.P3/5 and closed the evidence. 

9. It is important to mention here that on 18.7.2022 Sh. Navjot Singh Advocate counsel for opposite party No. 2 has suffered the statement that I plead no instructions on behalf of opposite party No. 2. 

10. We have heard the Ld. Counsel for the parties and have gone through the documents placed on record by the parties. 

11. Ld. Counsel for complainant argued that the complainant purchased one Apple iPhone 6S, Colour Rose Gold having EMI No. 353314073685743 for total consideration of Rs. 47,000/- from the opposite party No. 1 on 6.2.2016 Ex.C-3 and the complainant also purchased apple care protection plan and paid Rs. 4,500/- on 2.2.2017 and extended warranty of the above said Apple iPhone for another one year. It is further argued that on 3.10.2017 the above said iPhone got power related problem and the same was submitted before the opposite party No. 2 to repair the same and the same was delivered after getting repaired on 11.10.2017. It is further argued that on 12.10.2017 the above said iphone again developed the same problem and the same was submitted before the opposite party No. 2 which was delivered to the complainant on 24.10.2017 after repair at 5:39 PM in the evening. It is also argued by the Ld. Counsel for complainant that on the same day i.e. 24.10.2017 after about 10 minutes the above said iPhone developed the same problem and the complainant again submitted with the opposite party No. 2 but this time the above said iPhone delivered to the complainant without repair by stating that the reason with battery drainage issue and the opposite party No. 2 told the complainant that the said iPhone cannot be repaired under warranty and the complainant will have to pay the charges for the same. 

12. On the other hand, Ld. Counsel for opposite party No. 3 argued that the alleged damage caused to the iPhone by external factors which are not associated with the manufacturing/inherent condition of the product and as such acts which disregard the warranty policies of manufacturers. It is further argued that the complainant approached the opposite party No. 2 on 3.10.2017 for the alleged issues regarding the battery drain issues in his phone and the opposite party No. 2 found that the device had top panel crack, marks on lower panel near head set jack and repaired the mobile set and returned to the complainant in working condition. It is further argued by the Ld. Counsel for opposite party No. 3 that the complainant approached the opposite party No. 2 on 12.10.2017 with the same problem and the opposite party No. 2 diagnosed and found heavy dents and marks on the device and the same was repaired and returned to the complainant in working condition. It is also argued that the complainant again approached to the opposite party No. 2 with the same issues in the device and the opposite party No. 2 found that the device had heavy dents and scratches on it which amounts to physical damage, so it cannot be covered under the warranty, as such the complainant is liable for out of warranty paid service. It is further argued that the complainant has violated the terms and conditions of the warranty provision as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, hence the device was rendered out of warranty. It is also argued by Ld. Counsel for opposite party No. 3 that the liability of a manufacturer arises only when there is inherent defect in the product and manufacturer cannot be made liable, until it is proved by adducing expert evidence. 

13. In the written version the opposite party No. 2 alleged that  the complainant brought the above said iPhone in the service centre of opposite party No. 2 for repair and the same was sent to the opposite party No. 3 at the same time and a Loaner Device bearing Serial No. FFMS6LP5G5MQ was issued to the complainant and after thorough examination the mobile set was returned by the opposite party No. 3 with the remarks that the Unit is Tampered one and this intimation was duly given to the complainant vide an E-mail message on 4.12.2017 Ex.O.P2/8 and also a whatsapp message was sent by the Centre Manager, Anuj Sharma Ex.O.P2/7 to the complainant and it was specifically mentioned that the complainant has not returned the Loaner Device bearing Serial No. FFMS6LP5G5MQ which was issued by the opposite party No. 2 against the mobile set at the time when he deposited his mobile set with them for repair. 

14. On the perusal of the record it is proved that the complainant has approached the authorized service centre i.e. opposite party No. 2 of the opposite party No. 3 for repair of the mobile set in question and in this regard the opposite party No. 2 has placed on record Delivery Report Ex.O.P2/4 in which it is mentioned the Job Created Date 12 Oct 2017 and Job Closed Date 24 Oct 2017 and in the Column of Condition of Equipment it is mentioned as “General usage scratches, need to inspect internally, TOP PANEL CRACK, mark on lower panel and sides, crack mark on lower panel near headset jack” and in the Column of Action Taken it is mentioned as “Part Replaced and Resolved”. Moreover, in the written version the opposite party No. 2 has mentioned that the complainant brought the above said iPhone in the service centre of opposite party No. 2 for repair and the same was sent to the opposite party No. 3 and at the same time a Loaner Device bearing Serial No. FFMS6LP5G5MQ was issued to the complainant and after thorough examination the mobile set was returned by the opposite party No. 3 with the remarks that the “Unit is Tampered one”. But the complainant has failed to rebut the above said version of opposite party No. 2 by adducing any cogent evidence on record. Therefore, as per Ex.O.P2/4 it is proved that the problem/defect of the mobile set of the complainant was resolved by the opposite party No. 2 but the complainant has failed to rebut the Delivery Report Ex.O.P2/4 of the opposite party No. 2. It is important to mention here that the complainant has failed to prove on record by producing any expert evidence that the mobile set in question is having any manufacturing defect. 

15. Ld. Counsel for the opposite party No. 3 has relied upon the judgments of The Hon'ble National Commission, New Delhi in case titled Pawan Kumar Versus M/s Nissan Motors India Private Limited bearing Revision Petition No. 2276 of 2017 decided on 3.1.2018 vide which it is held that “Petitioner has failed to place on record any expert opinion regarding alleged manufacturing defect in his vehicle. Deficiency not proved.”

16. Further the Hon'ble National Commission, New Delhi in case titled Sanjay Singh Versus Dabloo Bhagat bearing Revision Petition No. 2840 of 2016 decided on 11.5.2018 vide which the Hon'ble Commission held that “The complainant failed to place on record any technical/expert report to support his allegation that the tractor in question was defective.”

Both these citations are fully applicable to the facts and circumstances of the present complaint as in the present case also the complainant has not filed any expert report, so failed to prove any manufacturing defect in the mobile set. Therefore, there is no deficiency in service and unfair trade practice on the part of the opposite parties. 

17. In view of the above discussion, there is no merit in the  present complaint and same is dismissed. However, no order as to costs or compensation. Copy of the order will be supplied to the parties by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.  

ANNOUNCED IN THE OPEN COMMISSION:

       3rd Day of August, 2022

 

 

            (Ashish Kumar Grover)

            President             

 

(Urmila Kumari)

Member