The complainant booked an Apple iPhone 5s with Amazon.in on December 24 th, 2015, by paying online using her Visa credit card. The item, Apple iPhone 5S (Space Grey, 16 GB) was covered under 1 year warranty from manufacturer.
On September 5th, 2016 iPhone stopped working. On September 6 th , 2016, complainant took the non-working iphone5S to the Apple Authorized Service Centre at Hazra Road crossing and also called the Apple Helpline several times. Complainant was told that iPhone 5S was not water sensitive and that it was entirely her fault that the phone had stopped working. Apple Authorized Service Centre and Apple Care staff suggested that even though 3 months of warranty was left, complainant could either get the phone fixed for about Rs.25, 000/- or buy a new iPhone but no document relating to their version was handed over to the complainant.
By December 2016, Apple announced the launch of iPhone 7, having the distinguishing feature of water resistance unlike its preceding models.
In December 2016, complainant visited Systematic Media (OP-2) the Apple Authorized Service Center, at Ho Chi Minh Sarani, Kolkata 71, and after narrating the facts stated by the Apple Authorized Service Center at Hazra Road, challenged that Apple had been saying that the iPhone 5S was water resistant and that the phone in question had stopped working entirely due to the fault of the complainant, then way was Apple launching iPhone 7 with a distinguished feature of water resistance?
Representative at Systematic Media, Apple Authorized Service Center for the first time explained to the complainant that he could have replaced her iPhone 5S. However, he was unable to honor the warranty because Amazon.in was not authorized to sell Apple iPhone in December 2015. He gave the complainant a print out of Apple catalog which listed authorized online retailers of iPhone, and Amazon was not mentioned. He further added that iPhone 5S showed signs of internal tampering such as a wrinkled sticker inside, and missing screws. He said that the missing screws could have allowed steam to enter the phone and cause water damage. Apple Screws can only be removed using a unique apple screw driver, which are not in the possession of the complainant. Mr. Tarak Mukherjee said that online sale of tampered iPhones had become a nuisance, and in all such cases warranty is declined.
Petitioner had never noticed such incompleteness i.e. missing of screws from iPhone 5S even when it was handed over to the technicians of the authorized Apple Service Center. The authorized Apple Service Center at Hazra, should have mentioned that, screws were missing from iPhone 5S which they did not do, there is reason to believe that the screws might have been misplaced by the Apple Service Center which enabled them to decline to repair or replace iPhone 5S using warranty, also on those grounds.
The petitioner realized for the first time that the complainant had been sold probably a refurbished phone by Amazon.in by an unfair trade practice, because at the time Amazon.in was not authorized to sell Apple iPhones. Therefore, the entire liability of replacing the non-working phone with new or better model of iPhone rested with Amazon.in unless Amazon.in chose to
refund the entire money paid for the purchase of the said item. The petitioner immediately emailed and called Amazon.in customer care. During the phone call, Apple Customer representative acknowledged that Amazon.in was not authorized to sell apple iPhones and suggested the complainant to write to resolution-inat the rate of amazon.in.
However, on December 29th , 2016, Amazon.in customer support wrote saying, ‘Please provide us a scanned copy of written acknowledgement from Apple Customer Support that we are not authorized to see their items
(iPhones), failing which we are not able to help you.’
The customer filed the case complaining that iPhone not working after 9 months of purchase, well within warranty period of 1 year, and also that Amazon.in sold complainant the device, at a time when Amazon.in was not
authorized to do so, which is a serious lapse in the integrity of business practices.
The Hon’ble considered the following before delivering its order:
1.From Service Report of Systematic Media (OP-2), it appears that Diagnosis Details include ‘Wrinkled serial number sticker’ and ‘security screws are missing’. The complainant was repeatedly submitting that the iPhone was a used one in the USA and has been imported after repair for resale in India.This cannot be ruled out as the design of Apple Phone device is of special features and the device cannot be opened by ordinary service providers.
2. OP-3 stated that the iPhone is not refurbished because the complainant did not lodge any criminal complaint in support of her claim. This plea of OP-3 does not hold good. It cannot be said that since FIR or GDE was not lodged, the iPhone was not tampered or refurbished. This does not mean also that the complainant was cooking up facts to support her claim. Moreover, it is hard to believe that for an amount of Rs.22188/- a person in the occupation of a Scientist has been fighting against the OPs that too with spending of good amount of money.
3. OP-3 averred that in December, 2016, the OP-2 inspected complainant’s
mobile and found it to be having liquid damage and other damages and Service Report produced by the complainant clearly shows the findings. This version of OP-3 appears again to be not a fact. The Service Report of OP-2 nowhere mentions of any liquid damage. OP-3 has always in mind the matter of liquid damage to discard the claim for replacement of the damaged phone with a new one. How can OP-3 deform the real picture?
The iPhone appeared not to be a sound one failing to meet the purpose of a high price phone. So, the OP-3 needs to replace the phone as a purchaser needs service of the device
4. OP-3 stated that complainant used the phone for almost a year when
its warranty was getting over and then damaged it by liquid. This is very juvenile argument in deed as OP-3 could not file any evidence in support of such allegation against the complainant.Moreover, 3 (three) more months was due to expire before expiry of Warranty period.The Service Report of OP-2 also stated that the device was brought during the warranty period.
5. OP-1 stated that OP-1 neither sells nor offers to sell any products.
This version is wrong. OP-1 offered to sell and complainant accepted the offer.The complainant paid money to OP-1 and purchased the phone from OP-1, So, OP-1 is the online seller and it cannot shirk off its liability. In this connection Section 13 (3) of I.T. Act, 2000 may be referred to and it reads, ‘Save as otherwise agreed between the originator and the addressee, an electronic record is deemed to be dispatched at the place, where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business’. Place of business should also mean place of residence for those who have no place of business.
6. In Spicejet Limited Vs Ranju Aery, dated 29.12.2015, U.T. Chandigarh SCDRC in FA-347/2015 The Hon’ble Chandigarh U.T. SCDRC observed in its judgement ‘….. We need to look into the purpose and spirit, for which the Act was enacted and how it is to be interpreted. Real purpose of the Act was toempower the consumers to take on the might of large corporations and also preventing unscrupulous entities in business, from taking undue advantage of the weak position, in which the consumers are placed. Nobel idea was to protect interests of the consumers, and for the purpose, to establish mechanism, in which efficacious and economical justice is imparted to them. Reading of the provisions of the Act makes it clear that it is a consumer friendly enactment. When the Act was enacted in the year 1986, E-Commerce virtually was not in practice. At present, it is a
digital era, in which large number of transactions are being conducted on line through internet.
In Lucknow Dev. Authority- Vs – M>K>Gupta (AIR 1994 SC 787), it was specifically opined by the Hon’ble Supreme Court of India that the provisions of the Act are to be construed in favour of the enactment, as it is a social benefit oriented legislation. In State-Vs-S.J.Chowdhary (AIR 1996 SC
1491), the Supreme Court of India also observed as under:
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act’s passing, in law, social conditions, technology, the meaning of words, and other matters.
To interpret provisions of an Act, rational approach and not a technical approach, needs to be adopted. The provisions of the Act need to be interpreted broadly to protect interest of a poor consumer.
As the complainant paid consideration to the online seller (OP-1) to purchase the iPhone, so, the complainant is a consumer under the OPs as defined under section 2 (1) (d) (ii) of the C.P. Act, 1986.
The OPs failed to address the grievance in respect of the damaged iPhone in spite of being within warranty period. So, OPs are deficient in terms of section 2 (1) (g) read with section 2(1) (o) of the Act.
Such deficiency of OPs affected the interest of the complainant depriving her from use of the iPhone for day to day essential communications.
So, OPs are liable to the complainant. In this context, it is to be reminded that OP-1 (seller) and OP-2 (service Centre) have acted on behalf of the OP-3 (Manufacturer) in the chain system of online business.So, liability shall be joint and several.
The OP-1, Amazon.in cannot also avoid responsibility as it sold the iPhone when it was not authorized to do so. The authorized list did not reveal OP-1 as authorized seller in 2015. The dispute is between OP-1 and OP-3 but OP-1 having sold the iPhone of OP-3 cannot avoid its responsibility and liability towards the complainant.
That the OP-1 & OP-3 are directed to jointly and severally replace the iPhone in dispute with a new one of the same model and price or with an improved water-resistant version of the iPhone on receiving the balance amount (deducting the price of the old phone from the notified online price of such improved version of complainant’s choice) and hand over the same to the complainant against receipt of old set, if not already done, within 30
days from the date of this order;
That all the OPs are further directed to jointly and severally pay Rs.20, 000/- as compensation for harassment, mental agony and depriving the complainant from use of the phone, u/s 14 (1) (d) of the Act, and Rs.5000/- as litigation cost, to the complainant, within 30 days from the date of this order;
That on failure of the OPs to comply with any of the above orders within the
stipulated time, the complainant shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.
Complaint Case No. CC/397/2017 / Date of Filing : 15 Sep 2017 in DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLKATA UNIT – II (CENTRAL)