IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present:

Hon’ble Mr. Bose Augustine, President

        Hon’ble Mr. K.N. Radhakrishnan, Member

Hon’ble Mrs.Renu.P.Gopalan, Member

CC No.243/2016

Monday the 30^th    day of January, 2017.

Petitioner                                            :         Keny Thomas,

                                                                   S/o. Thomas Zacharia,

                                                                   Thengunilkkunnathil House,

                                                                   Kaipuzha Muri, Kulanada P.O

                                                                   Pathanamthitta – 689 503.

                                                           Vs.

Opposite parties                                 : 1)     Apple India Private Limited,

                                                                   19^th Floor, Tower C.,

                                                                   U B City, No. 24,

Vittal Mallya Road

Bangalore – 560 001.

Reptd. By its Managing Director.

(Adv. Shiny Gopi)

                                                         2)       Ample  Technologies Pvt. Ltd.,

                                                                   Erakkathil Building, Vadavathoor,

Vijayapuram, Kalathilpadi,

Kottayam – 686 010

Reptd. By its Managing Director.

                                                O R D E R

Hon’ble Mr. Bose Augustine, President

                The case of the complainant filed on 26/08/2016 is as follows:

            The complainant in the year 2014, purchased an iPhone, manufactured by the 1^st opposite party  from the authorised showroom at Abudhabi where  he was working.  It was internationally operable  device and it is operable with any SIM of any country.  There after  he was returned from Abudabi to Kerala due to some visa problems.  Then the said iPhone become defective.  So on 13/05/2016 he entrusted the said phone to the 2^nd opposite party  for repair and on inspection it was found that the defect is due to its hardware failure.  And the 2^nd opposite party advised for the replacement of the defective device with a new iPhone of same series under  exchange price.  Accordingly on 13/05/2016 he had paid Rs. 24,629/- in addition to the said defective device for purchasing the FFMR51ZFG5MR iPhone, and on 20/05/16 the complainant collected the said disputed iPhone from the 2^nd  opposite party.  At the time of purchase the 2^nd opposite party assured replacement warranty for three months and the warranty is  registered in the online site of the 1^st opposite party.  The 2^nd opposite party had  entered the particulars of the warranty of the device and  details of the complainant in the  online site of the 1^st opposite party at the time when the complainant had purchased the defective replaced FFMR51ZFG5MR Apple  6 series iPhone.  Thereafter the wife of the complainant took the new replaced iPhone with her to gulf ie; Kuwait for her own use.  But the replaced devise not responded to her SIM at Kuwait and the same become inoperable at Kuwait.  Therefore she sent back the replaced new device to the complainant as it become useless at Kuwait.  The original defective iPhone was an internationally operable device hence the 2^nd opposite party should replace the defective device with a new device of same category ie. an internationally operable one.  But  the 2^nd opposite party replaced the original defective device with a new iPhone  that can be   operable within India only.  Furthermore the replaced device had shown some net work connection problems on certain occasions.  So on 06/08/16 the said replaced new iPhone was entrusted to the 2^nd opposite party and requested to replace.  But there was  no information of the replacement of the defective replaced new iPhone from the opposite parties.  So the complainant directly contacted to the 2^nd opposite party on 13/08/16 about the replacement of the defective replaced new iPhone.  But the 2^nd opposite party intimated that they will not  replace the replaced iPhone with new iPhone.  As per the warranty of the said iPhone, the last date of warranty period would have  been  on 19/08/16  and the entrusted of the said  Phone  is within the time of warranty.  According to the complainant as per the terms of their warranty, the opposite parties are bound to replace the defective device within the warranty period.  And the said act of opposite parties amounts to   deficiency in service and unfair trade practice.  Hence this complaint.

            1^st opposite party filed version contenting that the complaint is not maintainable.  According to them the disputed iPhone was purchased from   Abudhabi and the Apple warranty provisions clearly states that the  service to an iPhone is limited warranty services only in the country of purchase.  So the complainant’s iPhone is only eligible for an out-of-warranty service.  The allegation of the complainant that the iPhone in  question was found defective due to its hardware failure is not  correct.  The complainants’ iPhone cannot be replaced with another iPhone as it was not purchased in India and  he is liable to contact the authorised service providers in Abudhabi  where the said iPhone was originally purchased.  According to the 1^st opposite party the complainants’ iPhone is not having  any defects and they prayed for dismissal of the complaint.   

            Second opposite party filed version admitting the replacement of the complainants’ iPhone.  According to them on 13/05/2016 the complainant entrusted his phone due to complaint that it is not powering on and on  inspection it was found that the same had hardware failure.  So they advised to get the phone replaced under the exchange policy and accordingly it was replaced.  There after  on 06/08/2016 the said replaced  phone was brought by  the complainant with the  complaint that the device has been locked.  On checking the phone it was found that the phone was locked out due to ‘Activation Policy.’  Activation policy is a policy in iPhone which allows or restricts the carriers or SIM card service providers to use the phone.  According to them, 2^nd opposite party is only the authorised service agent for the 1^st opposite party, it is for  the 1^st opposite party to comment more on the  ‘Activation Policy’ of iPhone as they are the process owners of the same.  Here  as the phone was found  locked due to ‘Activation Policy’ the same escalated to the 1^st  opposite party and 1^st opposite party fixed the issue.  Thereafter they  do all  functional tests and now the device is working  fine.   And  the complainant was informed to come  and collect the device.  But the  complainant is not ready to take back the device.  According to the 2^nd opposite party every iPhone purchased from any country is usable in that country and if it can be used in any other country will  depend upon the ‘Activation Policy’ of the 1^st opposite party.  And 2^nd opposite party has no say or control on the same.  The network connection issues if any, cannot be attributed to the device providers.  According  to the 2^nd opposite party complainants’ phone  could not replaced under warranty and the said phone is working fine. And there is no deficiency in service or unfair trade practice on the part of 2^nd opposite party.  The 2^nd opposite party is also prays for dismissal of the complainant with cost.

Points for Considerations are:

1. Whether there is any deficiency  in service  or unfair trade practice on the part of opposite parties?
2. Relief and cost.

Evidence in this case consists of the proof  affidavit of both sides and

Ext. A1 to A4 documents from the side of the complainant and Ext. B1 to B3 documents from the side of 1^st opposite party.

Point No. 1

            According to the complainant the act  of opposite parties in not replacing the  defective apple iPhone amounts to deficiency in service.  Admittedly the phone was purchased from Abudhabi and the same was replaced with a new iPhone  by the 2^nd opposite party, the authorised service centre of the 1^st opposite party.  There after the replaced  device does not responded to SIM of the complainants’ wife  at Kuwait.  Admittedly the disputed iPhone is entrusted with the 2^nd opposite party.  Complainant alleges that the said iPhone is having  defects.  2^nd opposite party in their version stated that the complainant on 06/08/2016 brought the replaced iPhone with the complaint of device lock. 2^nd opposite party checked the  same and found that iPhone was locked due to ‘Activation Policy’.  According to the 2^nd opposite party they did all functional test and now the device is working  fine.  Opposite party informed the said matter to the complainant.  But the  disputed  iPhone is not  collected till date.  Even though complainant alleges defects  to the iPhone, but no evidence has been adduced by the complainant to prove the same.  In the  lack of evidence we do not find any deficiency in service on the  part of opposite parties.  Point No. 1 is found accordingly.

Point No. 2

            In view of the finding in point No. 1 .  Complaint is dismissed. No cost is ordered.

Pronounced in the Open Forum on this the  30^th    day of January ,  2017.

Hon’ble Mr. Bose Augustine, President              Sd/-

Hon’ble Mr. K.N. Radhakrishnan, Member        Sd/-

Hon’ble Mrs.Renu.P.Gopalan, Member             Sd/-

Documents for the petitioner:

Ext. A1:  Copy of  Service Advance Bill Dtd: 13/05/2016.

Ext. A2:  Copy of Product details and Problem report Dtd:06/08/16.

Ext. A3:  Copy of Product details  18/02/16.

Ext. A4:  Copy of Repair Status Dtd: 31/08/2016.

Ext. B1:  Copy of  extracts of Board resolution.

Ext. B2:  Copy of the Warranty provisions

Ext. B3:  Copy of the screen shot.

By Order,

Senior Superintendent.