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

DATED 16^th DAY OF SEPTEMBER 2023

ORDER

SMT.K.ANITA SHIVAKUMAR, MEMBER,

1. The complainant filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the Ops to replace with new hand set or pay its price with interest.
2. Direct the Ops to pay a sum of Rs.2,00,000/- for loss and damages for inconvenience to day today activities for loss of phone.
3. For such other reliefs as deems fit.

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

The complainant has purchased iphone13, model 13, ROW, 128GB, RED, IMEI/Sl.No. 350038446942852, Invoice No.ICOSL177321 on 29.10.2021, which has one year warranty.  Due to some defects in the battery and speaker, complainant taken the same to service centre at Planet Care Indiranagar, Bangalore, who is OP No.2 in this case. They noted in the service record and identified the defect in the speaker and battery and they sought 6 to 7 days to rectify the problem, complainant handed over to OP No.2 for rectification on 18.08.2022, and OP No.2 has issued service record ref. ID:5VEHU2NHICS.

3. Complainant further submits that on 25.08.2022, complainant got a call from service center that the phone was repaired and speaker is replaced by the service center and asked to collect it at 11.01am.  Complainant visited the service centre on 30.08.2022 to collect the phone. Before taking deliver the complainant has checked the phone and identified that the issue was not rectified and it was still persisted. Hence complainant returned the same to the service centre at the same time to their counter and mentioned that the phone is not repaired and resubmitted for further investigation. After that there was no information from the service center for two weeks.  After multiple follow-ups complainant contacted the OP No.2 the service center on 14.09.2022 and visited the service center on the same day.  The service center mentioned that the warranty is denied because the service center has found that there was some dust or glue like substance found on the outer mesh of the phone.
4. The complainant further submits that there is a contradicting statement of the OP2, when the service record issued by the OP2 on 18.08.2022, it is pertinent to mentioned job sheet that if any liquid damage or any tamper found service will be declined, but the said OP2 has made call to the complainant that the phone is repaired and speaker is replaced by them and ask the complainant to come and collect the same on 25.08.2022 at 11.01 am., which shows the malafide intention of the OP covering defect and liability put on the shoulder of the complainant which is illegal and unlawful act of the Ops. It is the duty of the Ops to replace the battery and speaker as the warranty was subsisting as on the date when the phone was submitted to the service centre, in order to avoid their liability may have shown irresponsible behavior, which amounts to deficiency in service.
5. The complainant further submits that the complainant has contacted apple care directly on 15.09.2022 & 16.09.2022, and sent mail to the service centre, but there was no reply. Again on 14^th October 2022, complainant follow up with OP, but there was no reply till this day. Hence complainant issued legal notice dated 27.10.2022, to the Ops, but there was no reply. Complainant stated in the complaint that he has submitted the phone on 18.08.2022, till this day phone is in the custody of Op’s.  Hence this complaint is filed.
6. In response to the notice, OP1 appeared through their counsel and files version. Though notice was served to the OP2, they have not appeared before this Commission. Hence, OP No.2 placed Ex-parte.
7. OP1 submits in its version that the complaint is neither maintainable in law nor on facts of the case. Complaint is nothing but a futile attempt on the part of the complainant to make unlawful gains at the cost of the OP1.
8. OP1 further submits that the technician of the OP2 conducted various tests including audio test and replaced the speaker module of the iphone under warranty and sent the said phone to the Apple Repair Centre of the OP1 for further diagnosis. OP1 thoroughly diagnosed the said phone and found accidental damage caused to the speaker grill due to unauthorized modification as they found thick glue like foreign material which has blocked and damaged the speaker grill of the phone.  Due to the said damage the RC (Repair Centre) team offered out of warranty repair quote to the complainant, but since no response from the complainant, the said phone was returned without performing any repairs.
9. The OP1 further submits that, the OP2 has contacted the complainant on 15.09.2022 and informed him that they have performed necessary tests and also replaced the speaker module under warranty. When the complainant did not accept the phone as the problem still persists, the Iphone was sent to Apple repair centre of OP No.1 for further diagnosis, wherein RC team found a foreign material/glue like substance on speaker grill which amounts to accidental damage and caused by unauthorized modifications.  Since the complainant did not respond to the out of warranty repair request, the RC returned the product and requested to collect the phone, but the complainant refused to collect the phone from the store of OP2.  It can be repaired if the complainant pays for out of warranty services. Complainant on his own volition declined to avail the offer for reasons best known to him and deliberately insisted for in warranty services to be performed on his phone despite being fully aware that his phone’s speaker grill was damaged.
10. OP1 further submits that the notice issued by the complainant seeking for replacement of the phone, was replied by OP1 on 04.11.2022, by explaining that phone was diagnosed with unauthorized modifications caused by accidental damage to the speaker grill. Hence apple one year limited warranty does not cover accidental damage and unauthorized modifications. Hence in warranty repairs cannot be performed on the I-phone and requested the complainant to pay for the out of warranty repairs.
11. OP1 further submits that as per sec 2(11) of the C.P. Act 2019, in order to constitute deficiency, two ingredients such as act of negligence, omission or commission which causes loss or injury to consumer, and deliberately withholding any relevant information from the consumer, are to be satisfied by the complainant. In the present case, there is neither negligence nor deliberate withholding of information by the OP1 and 2 as both the Ops have diligently provided the requested services to complainant and hence there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.
12.  The complainant has filed his affidavit evidence and relies on 13 documents.  Affidavit evidence of official of OP has been filed and OP relies on 05 documents.
13. Heard the arguments of advocate for the both parties.  Perused the written arguments filed by the OP1.

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

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

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

Point No.1:  Affirmative

Point No.2: Partly affirmative.

Point No.3: As per final orders

REASONS

16. Point No.1 AND 2: These two points are inter-related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments and documents filed by both the parties.
17. It is not disputed that complainant has approached Apple I-phone 13, 128 GB, Red color by paying Rs.79,900/- on 29.10.2021. OP has issued tax invoice for the same which is at Ex.P.1. It is also not disputed that the said phone was defective in battery, speaker as well and the complainant was unable to handle the phone. For that complainant approached OP No.2, Planet Care, Indira Nagar, who is authorized service centre of OP No.1, as identified the defect in the battery and also in the speaker when the complainant approached them. OP No.2 sought 6-7 working days for rectification of problem. As per their assurance complainant handed over the defective hand set on 18.08.2022 to OP No.2 for rectification. The issue reported by customer was mentioned in the Ex.P.2 which is a service record issued by OP No.2 and also mentioned the cosmetic condition of the “product with speaker having issue, it is very low battery heating and it is getting reduced time taken 6-7 working day data already erased if any low quality damage or any tamper founded service will be declined”. As per the service record Ex.P.2 the complaint registered with OP No.2 for the problem raised with hand set of complainant and the same has been handed over for the service. After the receipt of defective hand set to their custody, OP No.2 has sent mail to complainant about the registration of repair bearing ID No. 5VEHU2NAH1CS, the same has been acknowledged on 18.08.2022, as the very E-mail is service record for the same. Complainant waited for 6-7 days as they assured, on 25.08.2022 at 11 a.m, OP No.2 has called complainant stating that the said I-phone 13 is ready to be collected. Since complainant was out of station, he approached OP No.2 on 30.08.2022 to collect the phone and before taking to delivery of the phone, complainant has verified the repaired phone but he did not find any rectification in the defects. He identified the similar problem and observed that the problem is still persisted in the said phone, complainant did not accept the phone, instead he returned the phone at service centre immediately at the counter of OP No.2 for further investigation and repair the same in proper way. Hence, complainant even after repair did not find the proper functioning of battery and speaker in the very I-phone 13. Though OP No.2 has sent mail to complainant for collection of phone after repair which is at Ex.P.6 and also sent E-mail for greeting complainant which are at Ex.P.7 and Ex.P.8.
18. It is pertinent to note that complainant has not received the information from OP service centre for 2 weeks in spite of assured time of 5-6 working days lapsed, after follow ups with the help of customer care. On 14.09.2022 complainant visited service centre to get the information about the status of the very phone. Then complainant got information that the warranty is denied, there was some dust or glue like substance found on outer mesh of the phone, since complainant gave the phone to the service centre 2^nd time, he did not accept the allegations of the OP’s.
19. It is pertinent to note that if any such damage/glue/any tamper found, service would have been declined at the time of first service which has been made by OP No.2. Complainant after several requests and follow ups, when the OP’s did not return his phone after the rectification, complainant got issued legal notice on 27.10.2022 which was served on OP No.1. Notice sent to OP No.2 was returned un-served as left.
20.  After perusing the documents produced by complainant and OP No.1, no doubt that very Apple  I-phone 13 hand set carries 1 year warranty from the date of purchase that is from 29.10.2021, but the defect in the hand set and the same is handed over for repair on 18.08.2022, it is well within the period of warranty of 1 year which is not admitted by OP No.1.

21. Here the question arises with regard to the foreign substance like glue blocking grill of the speaker which is causing difficulty and problem to the complainant, has been damaged at the end of OP No.1 or at the end of complainant? Whether it is eligible for the warranty repair or not as per the stand taken by OP No.1? These are important to discuss further. OP No.1 advised complainant to avail the service out of warranty to pay the service charges. OP No.1 has produced pictures of speaker. After going through the pictures, it is closed with glue substance which are at Annexure-A of OP No.1. OP No.1 also produced documents Annexure-B which is a product service summary clearly discloses that after the verification with repair centre of OP No.1, they declined the warranty service and returned the hand set. Here it is cleared that the hand set is returned back to OP No.2 with instruction to return the hand set to complainant, but complainant stated in his complaint that hand set is not returned till the date of complaint. Therefore, in our view the said hand set is lying with OP No.2, who is placed Ex-parte in this case. No evidence placed before this commission about the phone is returned to complainant.
22. As per the statement of OP No.1 in their evidence the said damage amount to accidental damage caused by un-authorized modifications. When the complainant has handed over the hand set in the month of August and the said rectification has made by OP No.2 and the same has been verified on 30.08.2022 by complainant when the complainant has got information from OP No.2 about the very phone is rectified and is ready to collect.
23. Such being the case, OP No.2 has opened the phone and repaired the battery and speaker of the hand set, when he has not identified the glue at the time of first service, who is responsible for the glue attached to the speaker, is main question here? If it is the fault on the part of customer side, OP No.2 could have identified the glue at the time of first service and returned the same with declining the warranty coverage, but he did not do so. OP No.2 after rectification called the complainant to collect the phone and returned on 30.08.2022. We observed the discrepancy in the statement of OP No.1 that OP No.1 alleged on OP No.2 directly and the act of OP No.2 when he opened and rectified the phone. Complainant did not accept the phone even after the rectification as stated by OP No.2 returned at their counter itself, mentioning the damage caused as stated by OP No.1 repair centre, the glue like substance attached at the point of OP No.2 when he has tried to rectify the defect at the time of first service. OP No.1 admitted in their evidence that the technicians of OP No.2 conducted various tests including Audio test and replaced the speaker module of I-phone under warranty and sent the said I-phone to the Apple repair centre of OP No.1 for further diagnosis. Since OP No.1 is also aware that OP No.2 has handed the repair service before he alleges to the OP No.1 repair centre, it clearly exhibits that fault on the part of OP No.2 when they executed the repair service for the first time and the damage which further caused on their side, not from complainant. OP No.2 instead of repair the defect, caused irreparable damage to the phone during 1^st service. Hence in our considered view OP No.1&2 caused deficiency of service by declining the warranty service even though the said I-phone 13 carries 1 year warranty that it till 29^th October 2022 and also caused irreparable damage to the phone at the service centre, without taking proper care about the product. We observed that, even the damage caused from their side and suppressed the facts and tried to shift burden on complainant escaping from the responsibility is amounts to Unfair Trade Practice from OP side. Hence OP’s No.1&2 are liable to compensate the same.
24. Complainant and OP No.1have produced decisions to rely upon. But the facts and circumstances of the cases are not similar in nature. Complainant has claimed to replace with new hand set or pay its price with interest, and also claimed for Rs.2,00,000/- for loss and damages and other reliefs. In our view, the mobile phone manufacturing companies keep on changing their models and its specifications now and then, hence replacing the I-phone is not justifiable though he has claimed for replacements with new hand set. In our view it is just to grant refund of Rs.79,900/- towards hand set which he has paid with interest at the rate of 10% from the date of handing over the hand set to the service centre i.e., on 18.08.2022 till realization. It definitely caused the inconvenience, hardship and the financial loss to complainant without the hand set from August 2022, OP is liable to compensate monetarily by paying Rs.20,000/- as compensation and Rs.10,000/- towards cost of litigation. For the foregoing reasons we answer Point No.1&2 accordingly.

25. Point No.3:- In view the discussion referred above we proceed to pass the following;

                   ORDER

1. The complaint filed U/s 35 of Consumer Protection Act, is allowed in part.
2. OP No.1&2 jointly & severally liable to repay Rs.79,900/- with interest at the rate of 10% per annum from the date of 18.08.2022 to till realization.
3. OP’s are further directed to pay Rs.20,000/- towards compensation, Rs.10,000/- towards cost of litigation within 30 days from the date of order, failing which OP’s shall pay interest at the rate of 12% per annum on Award amount till realization.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 16th day of SEPTEMBER, 2023)

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

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