FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed plain application U/s 35 of CP Act, 2019 as amendated up to date. The complainant is a resident under Park Street PS which is within territorial jurisdiction of this commission.
The OP-1 Apple India Pvt. Ltd. is a renounced and reading mobile manufacturing Co. of the world and well known for its innovative mobile phone with latest designing configuration, software’s, applications having its registered office situated within the state of Maharashtra . The OP-2 is the authorised service centre (Kolkata based) of the OP-1.
It is further case of the complainant that he purchased one iPhone 12 on 5th Nov 2022 under customer No. 919029 being model name iPhone 12, ROW, 64 GB, Red IME12 No. 353053112939816 and IMEI/ MEID/ No. 353053112849874 for an amount of Rs. 79,900 only. The purchase invoice is annexed as annexure “A”.
It is further alleged by the complainant that from the very date of purchase the said iPhone was running smoothly, but after few months the complainant started facing problem in the sound system of the subject phone and on an ordinary prudent the complainant ignored the same. but gradually the problem increased and in the morning 20nd Aug 2021 the complainant failed to hear the voice of caller while receiving the phone call. The complainant rushed to the OP-2 the authorised service centre of the OP-1 and made a complaint to the OP-2. The OP-2 then issued a service record being Ref. ID VSSHRQ03ZEN dated 22 Aug, 2021 to the complaint specifically mentioned in “ issue reported by the customer; No receiver sound and cosmetic condition of product: multiple dent on edges and dent on back panel” and thereafter the complainant handover the subject phone to the custody of the OP-2. The copy of service records is annexed as annexure “B”. Subsequently, after a considerable period the complainant made contact with the OP-2 and they informed him that they were unable to open the said iPhone and repair the defect. They had seen multiple dent on its. Then the complainant asked the OP-2 to assign in writing through email and also to provide the complaint lodging site of the OP.
In that score the OP-2 refused to mention the reason for non repair in writing rather they proposed the complainant to collect the subject phone in that case they will assign in writing.
The complainant requested the OP-2 to supply the complaint lodging on mail to the OP-1 but the OP-2 repeatedly insisted the complainant to collect the said phone and received the condition/status of the said phone and reason for non-repair of that phone. thereafter, the complainant find that one site that the OP-1 has noticed therein that the iPhone 12 and 12 Pro devices may experience sound issue due to a component that might failed on the receiver module. Affected devices were manufactured between Oct 2020 and April 2021 . If the iPhone 12 and 12 iPhone Pro does not emit sound from the receiver when you might received a call, it may eligible for service.
Apple or/and Apple Authorised Service Provider will service eligible devices free of charge.
iPhone 12 Mini and iPhone 12 Pro Max Models are not part of this programmes. and it is also mentioned therein that the programmes covers affecting iPhone 12 or iPhone 12 Pro devices for 2 years after the first retail sells of the unit (annexure C).
It is stated by the complainant that in one hand by a press release the OP-1 admitted the fact of manufacturing defect with regard to sound system of iPhone 12 and I phone 12 Pro. On the other hand either the OP-2 being authorised service centre of the OP-1 with regard to press release dated 27 Aug 2021 trying to playing foul game with the customers in collision and under with guidance of the OP-1 or the OP-2 being the authorised service centre of the OP-1 is not aware about the press release dated 20th Aug 2021 made by the OP-1.
It is further case of the complainant that when it is admitted that there was manufacturing defect in the subject phone then what prevented the OP-2 to replace the defective iPhone by new one. It is denied by the complainant that there was any sort of dent on the body of the subject phone. So without having any other alternative, the complainant compelled to file this case before this commission with a prayer to give direction to the OPs to refund the purchase amount of the subject phone amounting to Rs. 79,900/- as paid by the complainant along with interest @ 19 % p.a. from the date of purchase till realisation. The complainant further prayed for direction upon the OPs to give compensation of Rs. 1,00,000/- to the complainant along with litigation cost of Rs. 25,000/-.
Both the OPs 1 and 2 had contested claim application by filing two separate WV denying all the material allegation levelled against them.
The OP-1 stated that the petition of complaint is malalfide, devoid of merits and self contradictory .
It is stated by the OP that from the service record produced by the complainant in Annexure “B”. it is clearly mentioned under the heading
“cosmetic condition of the product ” that the subject iPhone have multiple dent on his edges and dent on back panel which was acknowledged by the complainant by putting his signature on the said service record. So, due to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to defect in materials on workmen sheet or to damage caused by accident abuse, misuse, fire liquid contact , earthquake or other external causes the warranty does not apply . The OP-2 informed the complainant that due to physical damage his iPhone is in eligible for the warranty for repairs in warranty, then the complainant rushed to the OP-2 authorised service centre for repairing his iPhone to the iPhone thereafter the OP-2 launched the service programme referee to supra the complaint on his afterthought was trying to take illicit advantage from the said service programme and now approach this commission seeking free repairs of said iPhone which is simply his malafide intention because the fault or damage develop did not in the product due to manufacturing defect, but on account of his own negligence in mishandling of the product the damage caused. It will not covered under the warranty terms and conditions . As per OPs case, the complainant has no cause action to file this case and he is not entitled to get relief as prayed for.
The OP-1 in his WV denied the allegations made by the complaint against him. It is admitted by the OP-2 in his WV that the complainant purchased the subject iPhone 12 ROW (64 GB), bearing IME 12 No. 353053.12939860 and IMEI /MEID No. 353053112849874 wherein the complaint has stated that after a few months of purchase of the said device the complainant started facing problem with the sound of said device and badly failed to hear voice of callers while receiving phone calls. It is denied that the OP indulged unfair trade practice.
It is further case of the OP-2 that the complainant himself accepted that there were dent on device and at the time of issuance of service record, the cosmetic condition of said device was mentioned as having “multiple dent on edges and dent on back panel” and as per guidelines submitted by the OP-1, the OP-2 has not authorised to repair such product.
It is further stated by the complainant that no assurance of granted service/replacement was given. The complainant‘s choice have availed services of the OP-2 was based purely on convenience. So, being a mere authorised agent of the OP-1, the OP-2 has not authorised to repair or replace the said iPhone of the complainant. Thus, petition of complaint is baseless and liable to be dismissed with exemplary cost.
In view of the above fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
From the fact and circumstances of this case, it is revealed that this commission has got ample jurisdiction both territorial and pecuniary to try this case.
It is also revealed that the case is well maintainable in the eye of law on the point of limitation and there was sufficient cause of action on the part of the complainant to file this case.
Admittedly, on 05.11.2020 the complainant purchased the iPhone 12 under Customer No. 919029 being Model Name iPhone 12 ROW, 64 GB, Red, IMEI 2 No. 353053112939816 and IMEI- MEID No. 353053112849874 worthing of Rs. 79,900/- only (annexure A ) from the OP-2. From which, it is safely be held by this commission that within the ambit of CP Act 2019. Undoubtedly, the complainant is a consumer and the OPs are the service providers.
Now let us see whether there was any sort of deficiency in service on the part of the OPs.
It is alleged by the complainant that he purchased the subject phone from the OP-1 on payment of Rs. 79,900/- on 05.11.2020. From annexure A, we have got it. The complainant made complaint that in the morning of 22 August 2021 the complainant failed to hear the voice of the caller while receiving the phone calls. He also stated that after few months of purchase, he started acing with the sound system of the phone ie month of June 2021. The complainant had to run the OP-2 the service centre of the OP-1 of Kolkata. On examination the OP-2 issued a service record being VSSHRQ03ZEVN dated 23 Aug 2021 to the complainant specially mentioning “issued reported by the customer: no receiver sound and cosmetic condition of the product: multiple dent on edges and dent on back panel” thereafter the complainant handed over the subject phone to the OP-2 and left the service centre and service record is annexed as annexure “B”.
The complainant further alleged that the OP-1 in a press release dated 27 August 2021 stated that “iPhone 12 and iPhone 12 Pro service programme for no sound issues- Apple Support” , if may eligible for service so, he went to the OP-2 service centre and requested them for repairing the subject phone. The OP-1 and the OP-2 in their WV, evidence and argument, categorically stated that if the customer caused any sort of damage in the subject phone or product at his own. The question of warranty period does not apply therein and terms and conditions of service as per point No. 7. The ASP shall not be responsible for damage during service to any product which has been tempered or modified by unauthorised personnel before submission at the service centre”.
The Ld. advocate for the OPs 1 and 2 argued that the complainant purchased the I phone on 5 Nov, 2020 and he went to the OP-2 for repairing the subject phone on 23 August, 2021 ie almost long after 6 months and in the service record (annexure “B”). It is mentioned by the OP-2 that there was multiple dents on edges and dent on back panel of subject phone which means.
It was badly handled or misused either by the complainant or by any other unauthorised personnel and the complainant himself put his signature on the said service record but subsequently, the complainant denied that there was dent on edges and on back penal rather after notice the press release of the OP-1 the complainant tried to taking the benefit of said “press release “’ and prayed for refund of valuation of subject phone. The OP-2 on repeated occasion told the complainant that being authorised as the agent of the OP-1, they are not authorised to repair the subject phone when there was multiple dent on back panel or damages.
So, considering the entire evidence on record, this commission is of view that when the complainant brought the subject iPhone to the OP-2 being the authorised Service Centre Kolkata. The subject phone was already damaged and there was multiple dent on edge and dent on back panel. It was mentioned in the service record (annexure “B”) and the complainant put his signature on the record without raising by objection thereon.
Under such circumstances, it is opined by the commission that as per point No. 7 of the service record as mentioned in the annexure “B”. The OPs are not responsible for damage which has been damaged by unauthorised personnel of the subject phone before submission to the service centre. In the instant case, the subject phone was damaged either by mis-handling or misused by the complainant or any un-authorised personnel prior to submission the same before the service centre in that case the OPs are in no way responsible to refund the amount or to give free repairing service to the complainant. In that case, the complainant could avail the repairing of the subject phone by giving charges. However, on close scrutiny of material and evidence on record, it is revealed that the complainant failed to produce any sort of documents from which it can be held by this commission that there was no dents in the edges or back panel of the subject phone prior to submission the same before the OP-2 service centre, rather the complainant tried to design a story that there was manufacturing defect in the subject phone and the damage caused by the OP-2 during service but he concealed that the multiple dent on the edge and back panel in the subject phone either caused by him or caused by any unauthorised personnel. From which it is observed by the commission that the complainant did not come before this commission with clean hand. It is also held by this commission that there was no deficiency in service on the part of the OPs. So, the complainant failed to prove his case beyond all reasonable doubt and is not entitled to get relief as prayed for.
All the points of consideration are considered and decided accordingly.
The case is properly stamped.
Hence,
Order
that the case be and the same is dismissed on contest against the OPs with cost of Rs.1,000/-.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
