BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 2^nd day of February 2018

                                                                                                Filed on : 02.05.2017

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 171/2017

                                  Between

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had purchased an Apple i phone 5S 16GB Space Grey colour with IME No.352055074518494 through online shopping site  at a price of Rs.22,730/- on 23.02.2016 and one year warranty was provided to the product by the manufacturer. In the month of May 2016 onwards the phone started malfunctioning.  The issue was resolved temporarily when a factory reset was performed by the complainant. Due to the malfunctioning issue it was re-serviced again in the month of December 2016.The complainant performed a factory reset again.  But this time it was ineffective and the issue continued.  Thereafter, on 3^rd December 2016, the device was entrusted with the 1^st opposite party. It is pertinent to note that at the time of handing over the phone with the 2^nd opposite party, there were, light and minor scratches and dent on the phone exterior casing.  The device has not suffered any physical damage when it was handed over to the service centre.  The opposite party issued a repair acceptance form. A perusal of the acceptance form reveals while accepting the phone for repair there was no physical damage to the device. Further the phone has been accepted for repair under warranty and specifically stated that no service charges are payable as the same is under warranty.  On 6^th December 2016, the complainant received a quotation from the 2^nd opposite party stating that the i phone touch screen is working only intermittently and hence display has to be replaced.  However in view of dents, the new display is not seeing properly, hence the customer was required to buy a new phone under an exchange program by paying an exchange price of Rs.24,428/- .  It is pertinent to mention that the phone was purchased for a price of Rs.22,730/- much lower than the exchange price.  Further device is available in the open market for Rs.17,999/- or less. The complainant submitted that there was no physical damage to the display when it was handed over to the 2^nd opposite party. The 2^nd opposite party could have easily taken the display which clearly shows that there was no deep dent as alleged by them, otherwise they could not have easily taken the display. It is submitted that the display unit is an expensive unit for the apple phone and if they had replaced with a new display, company will lose a big amount for the same and since the product is under warranty that cannot be charged from the customer.  So the 2^nd opposite party deliberately and malafidely find a way that there were deep dents in the unit hence new display is not fitting into the unit. The complainant had sent a legal notice to the opposite party on 10.03.2017.  Even though all the opposite parties accepted the legal notice there was no action on the side of the opposite parties either to rectify the defects or replace phone. The opposite parties have no monopoly in the device and the entire service of the device is managed by them. In the above circumstance, after purchasing the phone on higher price if the service centre carelessly handles and refuse to repair, the customers have no option either to purchase a new phone or discard the old phone. Thus the opposite parties had committed unfair trade practice with the malicious intention to sell their stock of over priced models of the device thereby denying the complainant’s legal right to get his device repaired or replaced under warranty. The opposite parties had sold defective i phone to the complainant and they shall be liable to the loss, mental agony, hardships and loss of money suffered by the complainant. The opposite parties had also committed deficiency in service under warranty as agreed at the time of purchase. Thus the complainant is before us seeking direction against the opposite parties to either replace the defective i phone with a new device of similar description or refund its price with 18% interest p.a. and also seeking an amount of Rs. 1 lakh towards compensation and Rs. 15,000/- towards costs of the proceedings.  Hence this complaint.

2)       Notices were issued to the opposite parties from this Forum and the opposite parties 1 to 3 appeared and filed their version.  The 4^th opposite party was served with the notice but they did not respond to the notice issued hence they were set ex-parte.  The Counsel for the complainant has filed an affidavit on 09.08.2012 and produced e-mail communication received from the 5^th opposite party which goes to show that the notice has been served on the opposite party.

3)       Version filed by the 1^st opposite party is as follows:

          It is submitted by the 1^st opposite party that the submission and allegations raised in the complaint are incorrect, misleading and hence denied the allegations except those admitted in their version. The warranty issued by the manufacture clearly says that inorder to get replacement or service of the i phone within the warranty period the complainant could have to comply with all the terms and conditions of such warranty policy and device must not been damaged.  In the present case, the complainant bought the disputed i 5S phone to the 2^nd opposite party, service provider the authorized service centre on 30.12.2016. The complainant alleged that i phone had an alleged problem of ‘hanging’ ‘touch screen not responding & ‘data not connected”.  At the time of handing over the i phone to the 3^rd opposite party, it was physically inspected and the 3^rd opposite party found dents on the said i phone and the same was mentioned in the service report dated 03.12.2016 when the i phone was handed over to the 2^nd opposite party.  After the internal inspection, the 2^nd opposite party found that i phone touch screen was working intermittently and it restored i phone and therefor the functional diagnostics test since i phone touch screen was not working.  When the 2^nd opposite party tried to check the connectors no go, it was observed that the display was not seeing properly due to multiple dents on enclosure hence display popped out.  Due to the said dents the 2^nd opposite party declared the i phone to be damaged as per the warranty provisions and guidelines of the 1^st opposite party. The disputed i phone was handed over to the complainant with the service report on 06.012.2016 and was informed that the i phone can be replaced under exchange price since there were hardware issue and due to dents on the device. The service report dated on 06.12.2016 clearly describes that there are several dents on the disputed device and it cannot be repaired.  On the contrary, the complainant failed to provide evidence to prove his allegations that the manufacturing defects related to the disputed device hence the alleged claims are not identified, on this ground itself this complaint is liable to be dismissed.   Hence, it is evident that the complainant has breached the warranty implicated and applicable.  In the present instance the complainant of the i phone was unidentified and untraceable.  Therefore, it is beyond repair and not covered/replaced under the warranty. That the complainant is also guilty of concealing and suppressing material facts and has approached this Hon’ble Forum with unclean hands with the sole intent of deceiving this Hon’ble Forum. The Service report dated on 03.02.2016 clearly shows that there are dents on the said i phone and the complainant acknowledging the same by signing on the said service report. This proves the presence of the dents at the time the complainant handed over the i phone to the 2^nd opposite party. It is pertinent to know that the damages caused to the phone was due to the omission of complainant and was under the free service period.  The disputed device was damaged, it could not be repaired with the dents corrected touch screen and as the touch screen was working intermittently in the disputed i phone the functional diagnosis could not be performed. It is pertinent to know that the service report clearly shows that dent and damaged associated with and the same was acknowledged by the complainant and the complainant accepted the same by signing the service report dated 03.12.2016. The complainant failed to provide any evidence to prove his allegation that the disputed device was defective. There is no evidence to show that the said I phone was defective. He used the disputed device more than 10 months without any issue and the device cannot function with any manufacturing defects for 10 months. Therefore all the allegations made by the complainant are baseless and opposite parties are in no way liable to compensate him as he had damaged his phone by himself. There is no manufacturing defects with disputed device.  The Hon’ble Forum may be pleased to dismiss the complaint as the present complaint has no cause of action and it bears no substance, merit and liable to be dismissed with costs.

4)       Version filed by the 2^nd and 3^rd opposite parties are as follows:

          The 2^nd opposite party is the authorized service centre and the dealer of the 1^st opposite party.  In the instant case, the complainant had approached the 2^nd opposite party with his apple 5S 16 GB Space Grey I phone with the complaint that it kept hanging and the touch screen was not responding.  The phone was accepted by the 2^nd opposite party for inspection and service on 03.12.2016.  On 06.12.2016, the inspection of the phone got over and it was found while testing the phone with a known good display that the display unit was not seating within the enclosure due to multiple deep dents over the enclosure and display pop up.  The reason for the dents was due to physical stress from falls caused by careless and negligent use by the complainant.  In these circumstances, it was concluded by the 2^nd opposite party that there existed any circumstance to replace the phone free of cost.  The warranty conditions for free replacement do not apply here because the phone did not have any manufacturing defect.  However, the 2^nd opposite party was ready to replace the phone at an exchange price of Rs.24,428/- and the same was intimated to the complainant.  However, the complainant customer was not ready for the same and left the phone with the 2^nd opposite party. This being the truth, the answering the opposite parties deny all the allegations in the complaint which are contrary to what is stated above. There is no deficiency in service and unfair trade practice on the part of the 2^nd opposite party.  The 2^nd opposite party hence denied all the baseless allegations raised by the complainant. Therefore most respectfully prayed that hon’ble Forum may please to dismiss the complaint of the complainant.  In the facts and circumstances of the case and in the interest of justice.

5)       Evidence in this case consisted of proof affidavit has been filed by the complainant and examined as PW1. Exbt. A1 to A8 were marked on his side. No oral evidence adduced by the opposite parties. Exbt. B1 to B3 were marked on their side. Heard the learned Counsel for both complainant and the opposite parties.

6)       Issues came up for considerations are as follows

1. Whether the complainant has proved any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get either replace the disputed devices with a new one of similar descriptions or refund its price along with interest from the opposite parties?
3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

7)  Issue No. (i) and (ii)

     According to the complainant he had purchased an apple i phone 5S 50GB through online shopping site dated on 23.02.2016 at a price of Rs.22,730/- which was manufactured by the 1^st opposite party.  The disputed device showed some defects right from the beginning of its purchase.  The complainant himself performed a factory reset and the same was again started working. Subsequently, device became malfunctioning.  He approached the 2^nd and 3^rd opposite parties who were the authorized service centre of the 1st opposite party manufacturer. The 2^nd and 3^rd opposite parties failed to rectify the defects of the disputed device and they also submitted that display unit was not seating within the enclosure due to multiple deep dents over the enclosure and display proper.  The opposite party offered to some discount and compel to replace the i phone at a price of Rs.24,428/-. The complainant was not ready for the same and left the phone with the 2^nd opposite party. The complainant alleged that the defect of the disputed devices was part of its manufacturing defect. He further alleged that at the time of entrusting the disputed device had no deep dent as alleged by the opposite parties. The complainant submitted that the deep dent of the mobile handset happened on the side of the 2^nd opposite party. 

8)  The opposite parties alleged that the complainant used the mobile handset more than 10 months without any issue. A device cannot function for 10 months if it had any manufacturing defect. In this case, the complainant had failed comply with the warranty policy and damaged his i phone. Thereby he was rented out of this warranty. Inorder to get the warranty executed the complainant has to comply with warranty policies within the warranty period and device should not be physically damaged. The complainant approached to the 2^nd opposite party who is the authorized service provider of the 1^st opposite party on 3.12.2016 and he alleged that his I phone and alleged problem of hanging, touch not responding and data not committed.  At the time of handing over the I phone to the opposite party 3, it was physically instructed and found dents on the said I phone and the same was mentioned on the service report dated 3.12.2016. The 2^nd opposite party categorically stated that the reasons for the defects and dents co-related. Further they stated that the dent was due to the physical stress from fall caused by careless and negligent use by the complainant.

     Exbt. A1 invoice details shows that the complainant had purchased the disputed mobile handset on 23.02.2016 at a price of Rs.22,650/- which was manufactured by the 1^st opposite party. Exbt. A2 instructions issued by the 1^st opposite party shows that how to manage display does not respond to touch. Exbt. A3 shows that the complainant had entrusted his mobile phone with the 2^nd opposite party on 03.02.2016 for repairing the same. As per the Exbt.A3 the condition of the devices noted that “Dent on top back panel right side view. Minute dent display right top view.  Scratches at middle of top view display.  Small scratches on left top view near display dent near bottom enclosure back panel.  Dent near bottom back panel left enclosure.  Small scratch near back panel camera”. Exbt. A4 dated 06.12.2016 service report issued by the 2^nd opposite party stated that the disputed devices diagnosed details are “found I phone touch not working intermittently, restored i phone and could not ran functional diagnostics test, since i phone touch is not working, Re-seated display connectors, no go.  Tried with known good display, display is not seating with enclosure, checked internal physical condition, fond multiple deep dents over enclosure, display popup and as per apple service guideline, phone can be replaced under exchange price. Exbt. A5 photograph of the disputed iphone. Exbt. A6 and A7e-mail communications between the complainant and the opposite party.  Exbt. A8 legal notice issued by the complainant to the opposite parties and postal receipts and acknowledgement card produced herewith. Exbt. B2 warranty policy and terms and conditions of the 1^st opposite party manufacturer clearly says that  the warranty does not apply to physical damages, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship

10)          In this case, the complainant had purchased the disputed device on 23.02.2016.  As per the Exbt. A4 shows that complainant had entrusted the mobile handset to the 2^nd opposite party in first time for curing the defect on 03.12.2016.  It is evident that the complainant had used the mobile handset 10 months from the date of its purchase. Exbt. B3 clearly shows that at the time of complainant entrusting the mobile handset to the opposite party it had dent on the top back panel right side view and minute dent near display right view and showed some scratches also.  Exbt. A4 inspection report clearly proved that dent and defects of the mobile handset were correlated.  We find that the allegation of the complainant are baseless, Exbt. A3 clearly evident that at the time of entrusting the mobile handset, the device showed some dents and scratches.  Moreover, we find that the complainant also had failed to appoint an expert commissioner to prove his allegations regarding the manufacturing defect. The complainant did not do anything for appointing an Expert to prove in this case as per the Section 13 (1) (c) of the Consumer Protection Act.  

11)          In the above facts and circumstances we find that the complainant miserably failed to produce substantial evidence before this Forum to prove his case. We find that Exbt. A1 to A8 are not sufficient for supporting the allegations of the complainant. Exbt. A3 and A4 clearly evident that the argument of the opposite parties are believable. Therefore, we are of the opinion that the complainant could not prove any deficiency in service or unfair trade practice on the part of the opposite parties. Hence the opposite parties are not liable either to replace the disputed mobile handset with new one or to refund its price to the complainant.  We find that the issues (i) and (ii) against the complainant.

12)          Issue No. (iii)

     Having found the issue Nos. (i) and (ii) against the complainant, we are not inclined  to consider and decide issue No. (iii).

10)     In the result, we find that complaint is liable to be dismissed. Accordingly the complaint is dismissed.

         Pronounced in the open Forum on this the 2^nd day of February 2018.

                                                     Sd/-Sheen Jose, Member

                                                     Sd/-Cherian K. Kuriakose, President

                                                     Sd/-Beenakumari V.K., Member

                                                              Forwarded by Order

                                                              Senior Superintendent

Date of Despatch        :

              By Hand      :

              By post        :

                                              APPENDIX

Opposite party’s Exhibits     ::   

Depositions  :

          PW1  :         Derrick Sebastian

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