2. Upon notice, the OP has appeared and filed the written statement taking the preliminary objections that the contentions and averments made by the complainant in the present complaint are patently false, vexatious, devoid of any merits and made with the malafide intention of harassing the OP; the complainant intentionally seeks undue benefits and unjust enrichment by making patently false and unsubstantiated claims against the OP; the complainant has not come before this Forum with clean hands; OP is a company of global repute and is an internationally renowned leader in innovation and advancements in the sphere of telecommunication devices, computing and communications. Further stated that the OP takes all necessary measures to be in compliance with the law and highly values its customers and takes necessary action to ensure that, the customer is satisfied and receives high quality services and products.
Further submitted that it is a common market principle and also an established position of law that, consumers who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Act; to be specific, when consumers cause damage to products by external factors, which are not associated with the manufacturing/inherent condition of the product and such acts which disregard the warranty policies of manufacturers (in the instant case “Warranty”), cannot claim relief under the Consumer Protection Act, 1986; the provision and terms of the Apple Warranty specifically exclude damaged products which is the case in the present matter.
The damage caused to the iPhone on account of the negligent misuse by the complainant will be rendered out of warranty and the said alleged damage is not attributable to OP. In the present case, the few prefatory facts are necessary for unfolding the sequence of events that followed after the complainant purchased the said iPhone 7 bearing serial No.FYLVP2C8HG7F on 23.09.2017 through online from Flipkart. The complainant approached F1 Solution Pvt. Ltd. an authorized service provider of the OP on 03.01.2018 for the alleged issues regarding the paint colour of the back panel of the device was chipping off. The AASP (Apple Authorized Service Provider) i.e., F1 Info Solution Pvt. Ltd diagnosed the device and found that the device had cosmetic damage on it and hence, it was not covered under the warranty. The complainant was clearly informed that his device is rendered out of warranty and so it cannot be covered under the warranty. The complainant approached Apple Care and so an exception was provided by the OP to cover the cost of this service in warranty. The device was then replaced with the new iPhone 7 by the AASP of the OP and the complainant was clearly advised that not to use the cover on the device as it would lead to discoloration of the back panel. The complainant again approached the AASP on 10.01.2018 for the same issue to which the AASP diagnosed the device and found the cosmetic damage. The complainant was clearly informed that his device was rendered out of warranty and so it cannot be covered under the warranty and offered the complainant an out of warranty paid service to which the complainant denied. The complainant is liable for out of warranty paid service. Thereafter, the complainant never visited/approached AASP of the OP for any sort of service or issues with the device. The complainant has violated the terms and condition of the warranty provision as per clause (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship, issued by the OP. hence, the device was rendered out of warranty. Cosmetic damages are strictly not covered under the warranty issued by OP. Further, complainant has failed to produce any evidence in support of his claims; hence, the OP is not liable for any sort of refund and compensation to the complainant. The complainant is solely responsible for his own act of negligently handling of the device. Further stated that it is the result of complainant’s negligent handling of the device and not due to the manufacturing defect or due to deficiency in service. The complainant has damaged the device and despite of his own negligence the complainant is now trying to claim refund by violating the said warranty provision. Further submitted that liability of a manufacturer arises only and only when there is inherent defect in the product when the said product was manufactured.
In reply on merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed with costs.
3. To prove his case, the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit Annexure RA along with documents Annexure R-1 to R-5 in evidence and closed the evidence on behalf of OP.
4. We have heard the complainant and ld. counsel for the OP and gone through the record minutely and carefully.
It is evident that the complainant purchased the Handsets/ VZ89712/Apple HSN:85171290 355333080445667 from the OP vide tax invoice Annexure C-1 for an amount of Rs.38999/-. It is also evident that the colour of back panel of the said set was found chipping off/eroded by the complainant and thereupon, the complainant contacted the OP regarding the discoloration of the back Panel of the set. In this regard, the OP generated the job sheet Annexure C-3, dated 03.01.2018 which reveals that the handset was returned to the complainant without taking any action. It is beyond the pale of controversy that set bearing No.FYLVP2C8HG7F was replaced on 17.01.2018 by the OP with another set of the same colour as is evident from the perusal of Annexure C-6. It has further been revealed that the complainant again experienced the same problem regarding the discolouration of the back panel of the set and thereupon he contacted the OP for the replacement of the set and this time the OP rejected the claim of the complainant stating that the set was not liable to be replaced as it carried cosmetic damage and that it had no manufacturing defect in its functioning. The OP taking the shelter of recitals as contained in warranty conditions Annexure R-2, which says that the warranty does not apply to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship, denied the claim of the complainant. The complainant’s version is that the defect of the mobile set regarding discolouration is not merely a cosmetic damage but it is a manufacturing defect. The complainant has relied upon the warranty conditions as contained in Annexure R-2 vide which defect in materials or workmanship are covered under the warranty conditions. The complainant has invited the attention of this Forum towards the detailed conversation held by him with the representative of OP namely, Evan, who agreed that the device had a problem with regard to the coating. In this regard, the complainant stated that as per Annexure C-9, the OP has claimed that the iPhone 7 and iPhone 7 Plus come in a gorgeous design in silver, gold and rose gold finishes and introduce two all-new black finishes, a beautiful black finish that has an anodized matte appearance, and an innovative jet black finish that has a deep, high-gloss look; it has been claimed by the OP that the new jet black finish is accomplished through an innovative nine-step process of anodisation and polish for a uniform, glossy finish; it has further been claimed that an entirely reengineered enclosure results in a water resistant iPhone offering protection like never before against spills, splashes and dust. Clarifying the process of anodizing, the complainant invited the attention of this Forum towards Annexure C-10 wherein anodizing has been explained as under:-
“Anodizing is a simple electrochemical process developed more than 75 years ago that forms a protective coating of aluminum oxide on the surface of the aluminum. The lifetime of the finish is proportional to the thickness of the anodic coating applied. Aluminum oxide is a hard, durable, weather resistant substance that protects the base metal. The coating may be colored by dyeing or may exhibit bronze tones through diffraction phenomena produced by the coating. The coating grows from the base aluminum metal by this electrochemical process. The coating is integral to the metal and cannot peal or flake. The structure of the coating is many small hexagonal pores, which are filled with a “seal” that hydrolyzes these pores to fill them with inert aluminum oxide.”
5. In the advantages of anodizing, it has been claimed that anodizing cannot be a part of damage. Anodizing cannot peel off. The coating is actually part of the metal. Anodizing gives aluminum a deeper, richer metallic appearance than is possible with organic coatings. This is because an anodized coating is translucent, and one can see the base metal underneath the coating. This translucence contributes to color variation problems, but anodizers are doing a much better job of controlling the amount of color variation than in the past. Computerized color matching with quantitative, objective color data is now commonplace in most anodizing facilities. Anodizing is unaffected by sunlight. All organic coatings will eventually fail due to exposure to ultra-violet light.
The advantage of a thicker anodic coating is its durability and longer life. The Achilles heel of anodizing is it’s chemical resistance. Eventually, the surface of an anodic coating may succumb to acidic pollutants in urban environments. Anodized surfaces, like other building components, must be protected from acidic attack during construction. The life expectancy of an anodized coating is determined by its thickness and the building’s environment. Continuing the arguments, the ld. counsel stated that iPhone 7 and iPhone 7 Plus having the black and jet black colour had the problem of discoloration. The ld. counsel concluding the arguments relied upon the order of Hon’ble U.T State Commission, Chandigarh passed in FA No.A/263/2016.
On the other hand, the ld. counsel for the OP while controverting all the contentions of the complainant stated that the first set was replaced as an exception and that it had no manufacturing defect. The ld. counsel asserted that the replaced set also did not have any manufacturing defect as claimed by the complainant and it simply has the cosmetic damage which is not covered for claiming relief as per the terms and conditions of the warranty. Concluding the arguments, the ld. counsel prayed for dismissal of the complaint being baseless and meritless.
6. Having gone through the pleadings as well as documentary evidence adduced by both the parties, it has been found that the request of the complainant pertaining to the discolouration of the previous set was declined by the OP vide job sheet Annexure C-3 dated 03.01.2018. We have found that it was only upon the intervention of Mr. Evan with whom the complainant had a long conversation as has been revealed from Annexure C-5 that the first set was replaced by the OP admitting that the same had a problem with regard to the coating. The relevant part of the conversation as contained in Annexure C-5 is reproduced as under:-
“Evan:- I am doing well thank you, I hope that you are doing well. I see we are having a problem with the device and being able to get it covered due to the back of it having a problem with the coating.”
From above, we find clear admission of Senior Executive of the OP with regard to the defect in the coating of the handset of the complainant. It is relevant to mention here that while replacing the first set with a new one vide Annexure C-6 the OP had suggested and asked the complainant not to use the protective cover over the handset. In this regard we have found as per affidavit Annexure CA of the complainant that he did not use the protective cover over the handset. However, even without the use of protective cover around the handset, the back panel of the handset got eroded. As per Annexure C-10 which describes the process of anodizing, painting and powder coating as also advantage of anodizing and good and bad anodizing, the coating is part of the metal which cannot peel off. A thorough perusal of Annexure C-10 leaves a little doubt with us with regard to the defect in the coating of the set. Hence, we find no justification on the part of the OP while denying the claim of the complainant stating that the mobile set had simply a cosmetic damage and not a manufacturing defect. In our considered opinion the mobile set has a defect with regard to the process of coating, which has been done through the process of anodizing and the same is duly covered as per the terms and conditions of the warranty as contained in Annexure R-2 vide which defects in materials or workmanship, are duly covered under the terms of the warranty. In the back drop of above discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the Op while delivering services to the complainant. Hence, the complainant is entitled to relief.
7. As a sequel to the above discussion, we partly allow the present complaint with the following directions:-
- That the Op shall replace the said mobile set i.e. iPhone 7 with new one of that same model and having same features & specifications either of the silver or red colour only and handover to the complainant subject to the submission of the mobile set in question by the complainant with the OP. If the mobile set of the silver or red colour of the same model having the same features and specifications is not available with the OP then in that eventuality the OP shall refund the 80% amount of the cost of previous set to the complainant without any interest i.e. the OP shall refund the amount of Rs.38999/- minus Rs.7799 = Rs.31200/- (20% of the cost on account of usage by the complainant for a period of about two years).
- The Op shall pay a lump sum amount of Rs.10,000/- to the complainant on account of mental agony, harassment and cost of litigation charges.
8. The OP shall comply with the directions/order within a period of 30 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced
28.02.2019 Dr.Sushma Garg Dr. Pawan Kumar Saini Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
