State Consumer Disputes Redressal Commission
Pallavi vs Apple India Pvt. Ltd. on 7 September, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 242 of 2017
Date of Institution : 05.04.2017
Date of Reserve : 01.09.2017
Date of Decision : 07.09.2017
Pallavi wife of Amit Dua, Resident of H. No. 1, Sector-4, HUDA
Naraingarh, Distt. Ambala - 134 203
....Appellant/Complainant
Versus
1. Apple India Pvt. Ltd., 19th Floor, Concored Tower C, UB City
No. 24, Vittal Mallya Road, Banglore-560001 through its Corporate
Head / Managing Director.
2. TSS Service Solution Pvt. Ltd., SCO No. 664, Ist Floor,
Sector-70, Mohali, through its Regional Manager.
3. Dashing Mobile World, Opp. Indian Bank, Near Jagadhri
Gate, Ambala City, Haryana, through its Proprietor.
....Respondents/Ops
First Appeal against the order dated
22.02.2017 of the District Consumer
Disputes Redressal Forum, Sahibzada
Ajit Singh Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh. Gaurav Gupta, Advocate
For respondent No.1 : Sh. Davinder Kumar, Advocate
For respondent No.2 : Ex-parte.
For respondent No.3 : None.
First Appeal No. 242 of 2017 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 22.02.2017 passed in consumer complaint No. 158 dated 9.4.2015 by the District Consumer Disputes Redressal Forum, Mohali (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties (hereinafter referred as Ops) on the averments that she purchased World renowned mobile phone Apple I-Phone 5s gold 16 GB MM having serial No. F2LM32RHFRC6 for Rs. 53,500/- from Op No. 3 on 25.1.2014, which was manufactured by Op No. 1. At the time of purchase, Op No. 3 informed that the mobile set carries warranty of one year from the date of purchase. In the month of January, 2015, the mobile handset all of a sudden started giving problem. She faced power botton not working, volume down button did not work, Mick did not function properly. Immediately the complainant approached Op No. 3, who gave the address to Op No. 2, which is Authorised Repairer of Apple Mobiles. On the next day i.e. 24.1.2015, complainant approached Op No. 2 and brought all the defects to their knowledge. The representative of Op No. 2 told the complainant to deposit the mobile set with them for repair and to First Appeal No. 242 of 2017 3 collect it back after 5-6 days. The mobile set was handed over against job sheet No. MOH24011555557 dated 24.1.2015. Complainant visited Op No. 2 on 29.1.2015, 5.2.2015 and on 15.2.2015 but Op No. 2 failed to repair or replace the mobile hand set. After expiry of more than 60 days, Ops failed to repair the mobile set. The mobile set was within a warranty period, therefore, they were bound to repair or replace it. Alleging deficiency in service on the part of Ops, complaint was filed by the complainant against the Ops before the District Forum seeking directions against Ops to replace the mobile phone with a new phone of same make and model or refund the price of the mobile phone i.e. Rs. 53,500/-, compensation of Rs. 50,000/- and Rs. 33,000/- as litigation expenses.
3. Op Nos. 1 & 2 contested the complaint whereas Op No. 3 was ex-parte before the District Forum.
4. Op Nos. 1 & 2 in their written reply took the preliminary objections that the complainant has no cause of action to file this complaint as no warranty card/receipt has been mentioned, the matter in dispute does not fall within the purview of CP Act, therefore, the matter be relegated to the Civil Court; the complainant did not approach the Forum with clean hands and concealed the material facts as he tampered with the mobile phone in question and damaged the power key and volume key of the phone, just to claim a new mobile phone. The phone was given for repair under the manufacturer's warranty period but it was nowhere mentioned that it was the last date. Complainant First Appeal No. 242 of 2017 4 nowhere prayed for repair of the mobile phone but its replacement or refund, which cannot be allowed to the complainant. On merits, the averments stated in the preliminary objections were reiterated. Purchase of mobile phone is admitted but question of warranty period. Other averments stated in the complaint were denied. It was further added that there was no deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
5. Before the District Forum, the parties were allowed to lead their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/1 and documents Exs. C-1 to C-3. On the other hand, Ops No. 1 & 2 had tendered into evidence affidavit of Avinash Mamraj, R.M. Ex. Op-1/1, affidavit of Sh. Pardeep Singh, Sr. Service Engineer Ex. Op-1/4 and tendered 5 photographs.
7. After going through the averments made in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint filed by the complainant was dismissed on the plea that the complainant failed to rebut the report of Sh. Pardeep Singh, Senior Service Engineer.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
9. We have heard the learned counsel for the appellant Sh. Gaurav Gupta, Advocate and learned counsel for respondent No. 1 Sh. Devinder Kumar, Advocate.
First Appeal No. 242 of 2017 5
10. It was argued by the counsel for the appellant that at the time of purchase of the mobile phone Apple I-Phone 5s gold 16 GB MM having serial No. F2LM32RHFRC6 for Rs. 53,500/- from Op No. 3 on 25.1.2014, which fact is admitted by the Op in their written reply, warranty of one year was given, which is clear from the invoice Ex. C-1 where it was specifically mentioned one year warranty, therefore, the question of Op that warranty is not clear is rebutted by the bill issued by Op No. 3 Dealer of Op No. 1. After that the counsel for Ops did not raise the question and admitted that it carried warranty for a period of one year from the date of purchase. The date of purchase is 25.1.2014 whereas the mobile was submitted to Op No. 2, the Service Centre of Op No. 1 as per Service Report Ex. C-2. In the column of problem reported by the customer, it has been referred as under:-
"Problem reported by Customer Problem Category Problem Description Keyboard Related Power Button Not Working Speech Related Others Other Problem Volume down botton does not work.
Mic does not function properly.
Condition of Equipment:
General usage, scratches and major dents on all four corners. Need to inspect internally."
and the mobile phone was left with the Ops. After that as per the averments in the complaint, the complainant approached Ops several times to give back the repaired mobile phone but it was First Appeal No. 242 of 2017 6 not delivered. The counsel for the complainant has referred to email dated 13.3.2015 in which it has been referred with regard to handing over the mobile phone on 24.1.2015 for repair and after that he visited several times but mobile after repair was not handed over back. The Op has mainly relied upon the report of Mr. Pardeep Singh, Senior Service Engineer, who filed his affidavit Ex. Op-1/4. He in his report has submitted that they had received the phone No. F2LM32RHFRC6 of which volume down botton and MIC was not working. When the unit was checked by the Engineer, they found that the unit was unauthorizedly damaged the internal part physically relating to the volume botton and MIC. Photographs were taken and shared with other Senior Apple Team at Bangalore and then report was given. However, no affidavit of any Service Engineer working at Apple Team at Bangalore has been placed on the record. The counsel for the complainant has raised some interrogatories to this Service Engineer, those are as under:-
Ques- Is it correct that the mobile handset was accepted tion from the complainant for service was under
i) warranty?
Ans. It is correct that the mobile handset was accepted from the complainant was under warranty but that was subject to the terms and conditions of the warranty as mentioned on the warranty card.
ii) Is it correct that the mobile handset was not seen and accepted by you on 24.1.2015?
Ans. It is correct that I have not accepted the mobile hand set from the complainant on 24.1.2015 but it was First Appeal No. 242 of 2017 7 accepted by our executive with the terms and conditions.
iii) Is it correct that the seal of mobile handset was intact at the time of deposit at your office on 24.1.2015?
Ans. It is denied as there is no such seal of the mobile hand set.
iv) Is it correct if seal of mobile handset is open by unauthorized repairer warranty becomes void? Ans. It is correct that if the mobile handset is repaired from any unauthorized person then it is barred from warranty as per the terms and conditions.
v) Is it correct that the customer was not called for internal inspection of the mobile handset? Ans. It is correct but she had not asked for them same and we are not supposed to call her while inspecting the mobile handset internally.
vi) Is it correct that the mobile hand set was not opened and internally inspected in the presence of the complainant?
Ans. It is correct that she was not present.
vii) Is it correct that the identification of the mobile hand set cannot be made from the photographs attached by the Op No. 2?
Ans. It is denied.
viii) Is it correct that you are an employee of OP No. 2
and paid by them for filing of false affidavit and report in the court?
Ans. It is denied.
ix) Is it correct that the report prepared by me is false
and fabricated one and not based upon the actual position of the mobile hand set?
Ans. It is denied.
First Appeal No. 242 of 2017 8
x) Is it correct that you have prepared the biased and
arbitrary report as per the requirements of your client/company?
Ans. It is denied.
xi) Is it correct that the report does not mention any
date of internal inspection of mobile hand set nor does it mentions any date of its preparation?
Ans. It is correct.
xii) Is it correct that this report was not in existence prior
to the filing of consumer complaint by the customer?
Ans. It is correct.
xiii) Is it correct that the repair report prepared was never
supplied to the customer/complainant?
Ans. It is correct.
In case we go through the interrogatories, interrogatory No. (v) makes it clear whether customer was called for final inspection. In its reply it has been stated that she was not called for. In interrogatory No. 11, information has been asked what is the date of internal inspection and in the report, it has not been given. It was admitted as correct. In interrogatory No. 12, it has been stated that report was not in existence prior to the filing of the consumer complaint and it is also admitted to be correct.
11. No date of inspection is coming on the basis of report given by the Service Engineer Mr. Pardeep Singh and it has been prepared after filing the complaint, therefore, no authenticity can be attached to this report. In the interrogatories, it has been stated that it has been got repaired from any unauthorized person. From where these particulars were taken by Er. Pardeep Singh and it First Appeal No. 242 of 2017 9 does not come in the report of Er. Pardeep Singh. Normally nobody personally checks of internal system and whenever any defect is noted, the same is checked by the Authorised Service Engineer, especially as the mobile phone is costly one, therefore, we are of the opinion that the report of the Service Engineer in case read alongwith interrogatories has not been properly appreciated by the District Forum. The defect had occurred in the mobile set within the warranty period as is clear from Ex. C-2 but Ops were atleast required to repair it. Neither they repaired it nor did they return the mobile phone to the complainant, which amounts to deficiency in service on the part of Ops.
12. Consequent to above, we accept the appeal. Impugned order is set-aside. Complaint filed by the complainant is accepted and Ops are jointly and severally directed as under:-
(i) to repair the hand set/mobile phone Apple I-Phone 5s gold 16 GB MM having serial No. F2LM32RHFRC6 of the complainant to his satisfaction within a period of 30 days from the date of receipt of the order passed by this Commission with fresh warranty of one year of the repaired parts;
OR in case the mobile is not repaired to the satisfaction of the complainant then Ops will refund a sum of Rs. 53,500/- to the complainant alongwith interest @ 9% p.a. from the date of filing the complaint till payment.
First Appeal No. 242 of 2017 10
(ii) Ops are further directed to pay Rs. 10,000/- as lumpsum amount for compensation and litigation expenses.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER September 07, 2017.
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