BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 07^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs:-

1. Direct the OPs to refund to the complainant the entire amount of Rs.1,29,900/- paid by the complainant to purchase the malfunctioning device, subject to which, the complainant shall return the malfunctioning device to the concerned OP after receiving the refund in full and after transferring her data from the malfunctioning device to the new device purchased by her from the amount so refunded by the OPs.
2. Direct the OPs to pay interest amount to the complainant i.e., being paid by her on the loan availed by her for purchasing the device, its insurance, and accessories, at the rate of Rs.5,332/- per month (1.4% per month) calculated from 24.09.2021, till the date of full and complete repayment.
3. Direct the OPs to pay to the complainant an amount of Rs.196/- that was deducted by the insurer after the complainant cancelled the insurance.
4. Direct the OPs to pay the complainant an amount of Rs.3,500/- towards the accessories purchased by her for the said phone.
5. Direct the OPs to pay the complainant a sum of Rs.48,00,000/- as compensation for the extreme inconvenience and mental agony caused to the complainant due to their negligent and irresponsible conduct and deficiency in service, and for the blatant disregard shown by the OPs to the legal system by not bothering to reply to the legal notices;
6. Direct the OPs to pay the complainant the costs of this complaint and
7. Pass such other order.

2. The case set up by the complainant in brief is as under:-

The case of the complainant that she was a fourth year student of law at University law college, Bangalore University and she is also an influence on the hugely popular social media platform namely instagram. The complainant is the owner of the account bearing the user name “aslimaal” with more than 7000 followers and she was regularly post curated content and most of which is generated by herself using her mobile phone.  She was also invited by the company instagram to be part of the born on instagram program which is a premium feature that was being provided to select customers.

3.         The complainant has been engaged in this activity for more than 22 months and it has been generating revenues for her on regular basis.  As the most of the content posted by her was generated by her on her mobile phone she has recently decided to purchase a new mobile phone with much better camera quality and features than the one she had been used which is iphone X.  

4.         It is further case of the complainant that when she was searching for a phone that would fit her requirements she came across the advertisement of apple claiming the iphone13 Pro-Max to have exceptional and best in class features, especially camera quality. She was genuinely impressed with the pictures and videos that were been shown in the advertisement and she was decided to buy the said iphone.  There were several other models that were offered by other companies, which had much better features and cost less than half the price, she was seriously considering the iphone 13 Pro-Max as she had been a very loyal customer of the brand having own several devices of apple company in her family.  She being an old customer having spent lacks of rupees already on purchasing gadgets sold by apple company, she was looking forward the same kind of after sales services that the company promises to offer.

5.         The complainant prebooked iphone13 promax 256 GB on 17.09.2021 and on 19.09.2021 she was informed by the sales representative at Imagine Store Malleshwaram, that the launch of the said model was delayed by one month and that the imagine store promise to procure and sell iphone 13 pro model.  The complainant decided to purchase the said devise from the imagine store Malleshwaram, as it is supposed to be a premium reseller and could provide premium service to her such as giving her priority in case of any issue.  She was also promised that the features of iphone 13 pro would be the same as iphone 13 promax. Except for the size and based on which she has decided to go ahead with the purchase.  The complainant purchased iphone 13 pro on 24.09.2021 from Imagine Store, Malleshwaram, for a sale consideration amount of Rs.1,29,900/-. 

6.         The vendor had initially tried to sell an iphone 13 pro model which she has noticed before the billing process was complete and subsequently the vendor influenced her to purchase iphone 13 pro 256 GB in sierra blue colour and even though she was interested in purchasing and had also prebooked the graphite colour model she had to settle for sierra blue colour as she was told that the graphite color model was not available. At the time f the purchase she had once again confirmed with the store staff weather the said model had identical camera facility as the iphone 13 promax after explaining her specific requirement to which she was assured that the picture quality of the iphone13 pro camera was identical to that of iphone 13 promax and it would certainly suit her purpose.  Hence she was pleased about purchasing the phone.  She got the phone by availing loan from HDFC Bank of Rs.1,50,000/- and she has to repay the amount with interest at 21.24% pa., for 36 months.  She has purchased the same after availing the loan through her relative who was an active customer of HDFC Bank.  

7.         It is further case of the complainant that she purchased insurance for the phone by paying Rs.18,878/- and accessories including the phone cover for protection of the phone for which she incurred an expenses of Rs.3,500/-.  The vendor had initially tried to bring the wrong insurance policy which was corrected subsequently after it was noticed by the complainant.  She was also not even given the benefit of 5% interest in the insurance premium which was promised by the store staff.  After receiving the policy documents she also noticed that in order to avail the benefit of the insurance she will incur further service fees upto Rs.8,499/- for every event of availing benefit under the policy.  She has also enquired the sales person at the vendor store stating that she would not have taken the insurance policy if such hidden process were involved to which the sales person have given a evasive reply and kept the complainant in dark about these costs.  The complainant has also not received the vouchers worth Rs.2,000/- each and a free Belkin USB –C 10K power bank worth Rs.3,499/-.  After enquiry she was informed that she would not be eligible due to terms and conditions, this amounts to an unfair trade practice as it has influenced her decision to buy the said policy.

8.         It is the specific grievance of the complainant that after having used the phone for 2 days, she was shocked to notice that the camera of the iphone 13 pro unit purchased by her had multiple issues and was filled with bugs as the camera and photo quality failed to adhere or matchup to the promises made by the OP1 in promotions and advertisement.  The complainant was extremely disappointed at such sub standard and low quality image processing and service.  There were software glitches, overheating and data and carrier problems with high rate of call drops causing her extreme inconvenience and mental agony.  

9.         It is further case of the complainant that after realizing the defect in the phone she contacted the vendor on 28.09.2021 and he has informed that she should continue using the phone for few more days and then contact the authorizing service centre if the problem continued to persist and as such she continued to use the phone in good faith for one week.  Since the problem continued to persist she contacted the authorized service centre i-care Malleshwaram, i.e., the OP4 on 02.10.2021 and she was informed that the said phone had a manufacturing defect.  Upon communicating with apple support the iphone 13 pro mobile unit that she has purchased initially was replaced on 09.10.2021 with another unit and model No.NLVP3HN/A.  Even the process of replacing the phone was extremely suspicious and shrouded in mystery.  As the store staff kept telling her that the phone being sent to Mumbai for replacement she found out by calling up the apple customer support that the replacement centre was infact in Bangalore itself and not in Mumbai. The complainant has got strong suspension that the replacement piece that has given to her was not a new peace and it was not even in sealed iphone box, but instead it came in a white box.  

10.       It is further grievance of the complainant that she was extremely shocked and continued to suffer mental agony since even after the replacement the problem continues to persist along with additional new problems of the micro phone not working efficiently and the phone hanging and becoming unresponsive intermittently causing her extreme inconvenience. Even the replacement piece given to her is defective or there is something wrong with the devise itself and i.e, not upto the standard that being advertised, which amounts to unfair trade practice on the OP and that amounts to misleading of gullible customers through false advertising.

11.       It is further grievance of the complainant that due to the inconvenience caused by the constant changing of her phone due to malfunctioning it adversely affected her engagement on social media. In the period from October 8 to October 13 the reach of her account suffered terribly due to non engagement which can be seen from the report generated by the instagram.  She has also experienced lot of inconvenience due to non availability of a spare phone, which she had clearly communicated to the authorized service centre, it was extremely difficult for her to keep on switching phones as it used to take more than three hours for the data transfer itself. 

12.       The complainant was also working under a member of parliament as a part of her fellowship and the non availability of her communication device was great handicap in the execution of the work that was being assigned to her. She has also got issued a legal notice to the OP1 on 21.10.2021 bringing all the facts to their knowledge ad calling upon him to refund the entire amount of Rs.1,29,900/- within 7 working days from the date of receipt of notice and also asking them to reimburse the costs incurred by her on the insurance policy and accessories which amounts to Rs.22,378/- and to pay compensation of Rs.18,00,000/- for extreme inconvenience and mental agony caused to her due to the negligent and irresponsible conduct and deficiency of service on the part of the OPs.  

13.       It is further case of the complainant that she has also received a response from OP1.  One of the employee of OP1 namely Ms. Helen Leonard contacted her advocate and expressed their inability to process the refund at their end as it has to be done by the reseller i.e., OP2 and 3  and they told the complainant to contact them for the repayment of the amount. After that the complainant has also issued legal notice to OP2, 3 and 4 on 08.11.2021 calling them to immediately refund the entire amount and also to pay interest and also insurance amount and the accessories.  The OP2, 3 and 4 have received notice on 09.11.2021 but they have not bothered to give any reply to the legal notice.

14.       It is further grievance f the complainant that the conduct of the OPs goes much beyond deficiency of services but it is one of actively and intentionally defrauding their own unsuspecting customers for unduly enriching themselves.  The OPs who claim to enjoy very high reputation have failed to protect the trust of their loyal customers and have infact breached the same.  Later the employees of OP1 who were interacting with the complainant not only failed to provide any solution to her but also stopped correspondence with her after some time leaving her issues unresolved.  Hence the complainant has filed this complaint in view of the blatant disregard shown by the OP to the legal system by not bothering to reply to the legal notices.

15.       In response to the notice, OP1 and 2 appeared through their counsel and filed their version.

16.       It is the case of the OP1 that the complainant has purchased iphone 13 pro on 24.09.2021 from OP3 who the apple authorized reseller and a division entity of ample technologies pvt. ltd., the OP4.

17.       It is further case of the OP1 that the complainant has approached OP4 on 02.10.2021 with issues pertaining to camera quality hanging with iphone.  The OP4 informed the complainant to deposit the iphone for conducting diagnosis and the complainant has deposited the same on the same day.  The OP4 has raised repair acceptance form dated 02.10.2021 and the same was duly signed by the complainant.  After that the OP4 conducted required tests and diagnosis on the iphone and sent the same to OP1 for further diagnosis.  On receipt of the said iphone the OP1 conducted further diagnosis and replaced the said iphone with a new model of the same type.  The OP4 issued a service report on 08.10.2021 to the complainant. 

18.       It is further case of the OP1 that the complainant contacted the customer support of OP1 and reported that she is facing alleged issues with the camera quality hanging etc., with the replaced iphone.  The OP1 tried to trouble shoot the said replaced iphone and sent an email dated 11.10.2021 to the complainant to share more information pertaining to the alleged issues, but the complainant did not sent any information to OP1.  

19.       Further the OP1 advised the complainant to approach the nearest apple authorized service provider for hardware diagnosis of the replaced iphone, but the complainant has not approached any AASP till date for reporting alleged issues with the replaced iphone.

20.       It is further case of the OP1 that to the shock and dismay of the OP1 the complainant has sent a legal notice claiming refund and compensation on 21.10.2021.  OP1 after receipt of the said notice contacted the counsel of the complainant and explained to him and he had advised the complainant to approach the nearest AASP for diagnosis but the complainant failed to contact any AASP.  Even after the said phone conversation the complainant never approached the AASP and deposited her replaced iphone for diagnosis.  The counsel for the complainant has also addressed a email to the OP1 with the same alleged issues and sought compensation and refund.  The complainant has neither approached any AASP nor it is averred in the email for the counsel that the complainant has approached AASP is the alleged issues. The complainant has directly approached this Hon’ble commission by seeking exorbitant sums without having any merit.  

21.       It is the contention taken by the OP1 that the complainant has filed this complaint just to harass the OP1 and also with a malafide intention to waste the precious time of this Commission.  The allegations made in the complaint are all denied except the fact of purchase of the iphone and also the replacement of the earlier iphone with the recent one.  

22.       It is further case of the OP2 that the amount claimed by the complainant is exorbitant and she is not entitled for any compensation.  She has come before this commission with unclean hands and malafide motives by concealing vital facts that she has not submitted the resale iphone with the AASP for diagnosis and she has filed this false complaint based on her surmises and conjectures. In view of this complaint is not maintainable and liable for dismissal. Hence OP1 prayed for dismissal of the complaint.

23.       The OP2 has filed the version repeated all the allegations made in the version filed by OP1.  The OP2 prays for dismissal of the complaint as the complainant did not bring the replaced phone to this OP2 for inspection and on service at any point of time.  This OP2 has duly and diligently discharged its obligations as the authorized reseller and service provider of the OP1’s iphone and has addressed the complainant’s grievance in the best possible manner and without any deficiency in whatsoever.  Thus no fault can be attributed to the OP2 in respect of the alleged grievances of the complaint.  Hence prays for dismissal of the complaint.

24.       The complainant has filed her affidavit evidence and relies on 24 documents.  Affidavit evidence of Manager of OP1 has been filed and OP1 relies on 04 documents. Affidavit of evidence of authorized person of OP2 has been filed and OP2 relies on 03 documents. Heard the arguments. Perused the written arguments of both the parties and decisions cited by the complainant and OPs.

25.       The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

26. Our answers to the above points are as under:

       Point No.1: In the Negative

      Point No.2: In the Negative

      Point No.3: As per final orders

REASONS

27. POINT NO.1 AND 2: These two points are inter-related and hence they have taken for common discussion. Perused the complaint, affidavit evidence of both the parties and the documents filed by both the parties.
28. It is undisputed fact that the complainant has purchased iphone 13 Pro on 24.09.2021 from OP3 shop for a sale consideration price of Rs.1,29,900/-.  After purchase of the same she had also obtained insurance for the said iphone by paying Rs.18,878/- and also accessories including phone cover for the protection of phone for which she has incurred an expense of Rs.3,500/-. She has purchased the iphone by availing loan from HDFC Bank for R.1,50,000/- with interest @ 21.24% p.a., repayable within 36 months by way of EMI.  She has obtained the loan through her relative, who is said to be a active customer of HDFC Bank.  The complainant has also made allegations relating to the insurance policy and also she had made the allegation against the OPs that even though she was eligible for the offers made by the apple company they have not provided alleging that she is not eligible due to terms and conditions.
29. It is the specific grievance of the complainant that after purchase of the iphone she has used the phone for two days and after that she found multiple issues in the said iphone.  The camera of the iphone 13 pro was filled with bugs as the camera and photo quality failed to adhere or match upto the promises made by OP1 in promotions and advertisements. She was extremely disappointed for having purchased such substandard and low quality image processing and service.  There were software glitches, overheating and data and carrier problems with high rate of call drops causing her extreme inconvenience and mental agony.  
30. The complainant after realizing that there was a defect in the phone contacted the vendor on 28.09.2021.  As per his instructions she has continued to use the iphone for few more days and then contacted the authorized service centre i.e., Icare Stores, Malleshwaram, i.e., OP4 on 02.10.2021 and they have informed her that the phone had a manufacturing defect.  Later they have replaced the iphone on 09.10.2021 by providing another unit.  Even though the OP4 have informed the complainant that they have sent the phone to Mumbai for replacement but after enquiry from the apple customer support she came to know that replacement centre was in Bangalore itself and not in Mumbai.  She has got a strong suspicion that the replacement piece that has been given to the complainant is not even a new piece and it was not even sent in a sealed iphone box but it was sent in a white box.  
31. It is further grievance of the complainant that even after the replacement the problem continuous to persist along with new additional problems of the microphone not working efficiently and the phone hanging and becoming unresponsive intermittently causing extreme inconvenience.  Even the replacement piece given to her is defective and there is something wrong with the device itself and it is not upto the standards i.e., being advertised which amounts to unfair trade practice.  
32. It is further grievance of the complainant that in view of the malfunctioning of the iphone she has experienced a lot of inconvenience due to non availability of a spare phone which she had communicated to the authorized service centre.  The overall quality of the iphone is extremely bad, when compared to the advertisement and promotions of the OP1 about the said iphone model.  She was shocked to receive such bad customer service from OP1 after paying an exorbitant sale consideration of Rs.1,29,000/-.
33. When the OPs have not at all responded to her request she was forced to issue a legal notice to the OP1 on 21.10.2021.  The OP1 after received the said notice on 22.10.2021 had responded through their employees namely Ms.Helen Leonard who contacted the complainant counsel and they have expressed their inability to process the refund at their end, as it has to be done by the reseller ie., OP2, 3 and 4 and they have asked the complainant to contact the other OPs.  After that the complainant got issued the legal notice to OP2, 3 and 4 on 08.11.2021 calling them to refund the entire amount with interest and also requested to cancel the insurance and further to pay Rs.3,500/- towards the accessories purchased by her for the said phone. 
34. Inspite of the service of legal notice the OP2, 3 and 4 never bother to reply.  After that she had to file the complaint claiming refund of the amount from the OPs.  
35. On the other hand, the contention taken by the OP1 is that after replacement of the phone the complainant has not approached the service centre of the apple in order to resolve the alleged issues faced by her relating to the replaced iphone.  On 11.10.2021 the complainant has contacted the customer support of this OP1 and reported about the problem. At that time the OP1 tried to trouble shoot the said replaced iphone and they have sent an email dated 11.10.2021 to the complainant to share more information pertaining to the said alleged issues. But the complainant deliberately did not send any information to the OP1.  The OP1 has also advised the complainant to approach the nearest apple authorized service provider for getting the hardware diagnosis done for the said replaced iphone. But the complainant has not approached any AASP till the date reporting the alleged issues. Even after received the legal notice this OP1 have contacted the complainant counsel and requested them to approach the AASP but the complainant failed to approach the AASP.  The complainant without approaching the AASP with alleged issues she has directly come before this Commission by seeking exorbitant sums without having merit in the complaint.  The complainant has alleged in her complaint that there are several issues with the replaced iphone but she has never submitted the replaced iphone to any of the AASP for diagnosis.
36.  It is the specific contention taken by the OP1 that there is no cause of action regarding deficiency of service and unfair trade practice on the part of the OP1.  The OP1 has also referred sec 2(11) of the C.P. Act 2019 and further stated that in order to constitute deficiency the complainant has to establish the two ingredients i.e., any act of negligence, omission/commission which causes loss or injury to the consumer and deliberately withholding any relevant information from the consumer.  In this case there is neither negligence nor deliberate withholding of information by the OPs as the complainant has never deposited the replaced iphone with the AASP for conducting diagnosis but merely alleges the product to be defective and claims exorbitant compensation and replacement.  
37. The OP1 has also referred to the definition of deficiency as per C.P. Act 2019 and reproduced the same.
38. The OP1 has also cited the decision of the Hon’ble Supreme Court in CA No.8701/1997 i.e., Ravneet Singh Bagga –vs- KLM Royal Dutch Airlines and others, and also the other six decisions in support of their contention.
39. It is clearly held in the above decision that the burden of proving deficiency in service is upon the person who alleges.  When the complainant has failed to establish any willful fault, imperfection, short coming or inadequacy in service of the respondent the complainant is not entitle for the relief.  It is further held that if on the facts it is found that the person or authority rendering the service had taken all precautions and considered all relevant facts and circumstances in the course of transaction and that their action or the final decision was in good faith it cannot be said that there had been any deficiency in service.  If the action of the OP is found to be in good faith there is no deficiency of service entitling the aggrieved person to claim relief under the act.  
40. It is further contention taken by the OP1 that in this case the complainant has failed to prove as to how OP1 is deficient in providing services and has failed to produce cogent evidence in order to prove the same. Hence the complaint is liable to be dismissed.
41. In addition to this the OP1 has taken another contention there is no expert opinion in support of the allegation that the said replaced mobile is also suffering from manufacturing defect and she has not approached any AASP till date for reporting the alleged issues with the replaced iphone.  The complainant is not entitled for the relief.  The complainant is still using the replaced iphone and she has not handed over the same to any AASP for repair and diagnosis of the defects or issues concerning the replaced iphone.
42. On the other hand, the OP2 has taken the contention that the OP3 and 4 are merely business divisions of the OP2 and not stand alone legal entities.  Thus, the persons sought to be arrived in the complaint as OP3 and 4 are the OP2 itself and not separate juristic entities.  Hence OP2 to 4 are collectively referred as OP2 herein.  
43. The OP2 has also taken the contention that the complainant has not submitted the replacement iphone for inspection and service with the OP2 nor she has produced any report from the expert stating that the phone has a manufacturing defect.  The complainant failed to prove her fallacious allegations.  In view of the decisions of the apex court and also Hon’ble NCDRC the burden is on the complainant to prove the manufacturing defect on the iphone. When the complainant has failed to prove the manufacturing defect and she has failed to hand over the replaced phone for attending the issues raised by her to this OP2 to 4 she is not entitled for any relief.  This OP2 has duly and diligently discharged their obligations as the authorized reseller and service provider of the OP1 iphone and has addressed the complainant’s grievances in the best possible manner and without any deficiency in service.  The complainant has failed to prove any deficiency on the part of the OP2. They have specifically denied all the allegations made by the complainant about the alleged loss of income and loss of engagement on social media platform.  
44. On these back ground, we have gone through the oral and documentary evidence of both the parties, the complainant in support of her contention has relied on totally 24 documents.  The OP1 has relied on four documents and the OP2 has relied on three documents in support of their contention.  The complainant has also relied on the decisions on the Hon’ble Apex Court.  The decision cited by the complainant is in respect of medical negligence and also quantification of compensation.
45. We have gone through the email communications taken place between the complainant and also the OP1 and also OP2.  It is clear from Ex.R3 that the OP1 has accepted the repair and they have also replaced the iphone purchased by the complainant with another one.  When the complainant has alleged that she has also facing issues in the replaced iphone also, they have requested the complainant to hand over the replaced iphone to the authorized centre i.e., AASP for diagnosis and also for curing the defect.  Inspite of their request and the suggestions the complainant has not made any attempt to approach any AASP and to diagnose the problem and for curing the defect.  If really the iphone is having some manufacturing defect nothing prevented the complainant to get any expert opinion relating to this problem and produce the same before this Commission.  
46. The complainant has neither handed over the replaced iphone for curing the defect to any authorized service provider of the OP1 nor got any report from the expert about the defect of the replaced iphone. This commission is not in a position to assess the alleged defect in the replaced iphone only on the oral say of the complainant.  Under these circumstances, the complainant failed to establish the deficiency of service and also the unfair trade practice on the part of the OPs.  Hence the complainant is not entitled for any relief claimed in the complaint. Therefore we answer point No.1 and 2 in Negative.
47. Point No.3:- In view the discussion we proceed to pass the following;

O R D E R

1. The complaint is Dismissed without cost.
2. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 07^th day of November, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

Documents produced by the representative of opposite party – R.W.2;