BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of September 2017
Filed on : 18-05-2017
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.188/2017
Between
1. Lito Baby, : Complainants
S/o. Baby P.P, (By Adv. Raja Raja Varma)
Pathikulangara house,
Kizhakkambalam P.O.,
Ernakulam.
2. M/s. Ethan Packers,
Near Puthiyakurisu, Njaralloor,
Kizhakkambalam P.O.,
Ernakulam,
rep. by its M.D. Lito baby,
S/o. Baby P.P.
And
1. M/s. Apple India Pvt. Ltd., : Opposite parties
19th floor, Concorde Tower, (1st O.P. By Adv. Sreekala Krishnadas,
“C” UB city, No. 24, 42/1917-C, Vallamattom building, Old
Vittal Mallya Road, Railway Station Cross Road,
Bangalore-560001, Ernakulam-18_
Karnataka,
(Importer – India Office)
Rep. by its Managing Director.
2. M/s. Ample Technologies (2nd O.P. By Adv. P. Jayabal Menon,
Pvt. Ld., No. 16, Marottichoduroad, M/s. J&J Associates, T3, III floor,
Edapally, Kochi-682 024, Empire buildings, Old Railway
Rep. by its Office Head. Station Road, High Court East
3. M/s. Mobile King, End, Kochi-682 018)
Basement floor,Penta Menaka,
Shanmugham road,
Ernakulam-682 031,
rep. by its Show room Manager.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The 1st complainant is the Managing Director of the 2nd complainant . The mobile iPhone having one year warranty against the manufacturing defects was purchased in the name of the 2nd complainant for the use of the 1st complainant. After 2 months of its usage during 2016 June the phone started malfunctioning and therefore the complainant approached the 3rd opposite party from whom the phone was purchased. After inspection certain acts were installed and resetted and advised the complainant to approach the 2nd opposite party service centre for further case and repairs in case of repetition of the malfunctioning occur. Again in October 2016 the phone started malfunctioning and it was entrusted the 2nd opposite party for repairs. the phone was given back to the complainant after 30 minuts of repair. By January 2017 the phone started hanging again and it was entrusted to the 2nd opposite party for repairs. On 02-03-2017 the opposite party communicate d to the complainant by e-mail that for doing repairs on the phone certain spares are to be replaced and demanded to pay some amount as advance. The diagnostic report had shown as follows: " checked the internal physical condition, found corrosion in side screws, fungus and liquid contact indicator , slightly trigged, hence the iphone needs to be replaced under exchange." The complainant was directed to pay Rs. 24,428/- towards the price of the another handset in order to replace the existing one. Though the replacement of the phone under warranty demanded the opposite party did not comply the warranty conditions. When a new phone was available in the market for Rs. 18,300/- the opposite party had demanded Rs. 24,428/- towards the price of a new phone to be exchanged. The said demand is an unfair trade practice. The iPhone is now kept with the 2nd opposite party and as the warranty is over the mobile handset has now become worthless. The act of the opposite parties amounted to deficiency in service, the complainant is entitled for the free replacement of the mobile phone or repayment of the amount paid for towards its price hence the complaint.
3. Notices were issued to the opposite parties. Opposite parties 1 and 2 appeared and filed their version. The 3rd opposite party remained ex-parte.
4. The version of the contesting parties were in the following lines.
The 2nd opposite party is the authorized service centre . The complainant had approached the 2nd opposite party on 25-02-2017 with his iPhone 5 S for repairs on the complaint that the touch screen was not responding intermittently . As a part of the diagnostic procedure the opposite party ran functional tests and found that the defects could not be rectified. On further inspection it was found that the inside screws were corroded and there was presence of fungus and liquid contact indicator was slightly trigged, evidencing that the phone had coming contact with liquids and had sustained liquid damage. That fact was intimated to the complainant on 27-02-2017. The complainant was falsely averred that the phone for repairs during October 2016 . The terms and conditions in the repair acceptance form clearly states that the opposite party will not service any product if it is found that the defect has been as a result of accident, abuse, liquid spirit and such other causes. The repair acceptance form clearly states that the iphone had several dents and cracks which shows that the phone was used negligently and callously, which could have resulted liquid damage. Since liquid damage is not covered under the warranty. The opposite party had offered to replace the phone under exchange price. The opposite party did not engage any unfair trade practice as alleged. The complaint is sought to be dismissed.
5. On going though the above pleadings the following issues were settled for trial.
i. Whether the complainant has proved that there was any deficiency in service or unfair trade practice on the part of the opposite parties?
ii. Reliefs and costs.
6. The evidence in this case consists of oral evidence of PW1 and Exbts. A1 to A3 on the side of the complainant. The opposite party marked Exbs. B1 to B4 and examined DW1 as its witness.
7. Issue Noi. the mobile phone in question was purchased on 26-3-16 for an amount of Rs. 18,300/- in the name of the 2nd complainant as seen from Exb. A1. Exbt. A2 is the information regarding the warranty conditions. Exbt. A3 is an email communication addressed to the 2nd complainant wherein it is stated that the device has to be replaced under paid service to address the reported issue. It has also stated in Exbt.A3 that the engineers of the 2nd opposite party have completed the diagnosis of the phone.
8. According to the learned counsel for the complainant, the phone was entrusted with the warranty period for repairs and the opposite party did not honour the warranty. The opposite parties on the other hand argued that the complainant had approached the forum with unclean hands by secreting material facts. According to the learned counsel for the opposite parties the iPhone referred to in this case was entrusted to the 2nd opposite party for repairs under reference No. RAFCK1191880 on 25-02-2017 at 13.47 hrs. As per the repair acceptance form signed by one Mr. Manu C.K. admittedly entrusted by the complainant. The problem reported was that the touch screen was not responding intermediately. It is seen from the repair acceptance form produced by the opposite parties that there were dents present near left end of right end top and bottom right end along with a crack and also at left end bottom. Normal usage mass were also found. This documents contains terms and conditions of the repairs. According to the learned counsel for the complainants the opposite parties did not give any repair acceptance form when the phone was entrusted for repair with the 2nd opposite party. However, no such allegation is seen made in the complaint against the opposite party. The non-production of the repair acceptance form signed by one Mr. Manu, to whom the phone was entrusted by a complainant to hand over the 2nd opposite party is and instance to hold that the complainant had approached the Forum suppressing material facts regarding the external damages sustained by the phone. When there is external damage caused due to impact, the opposite party is not liable to honour the warranty . The complainant did not examine Shri. Manu who had allegedly entrusted the phone to the opposite party for repairs. Exb. B1, one year limited warranty conditions would clearly shows that the warranty is not covered when there is a external physical damage. Exbt. B2, repair acceptance form dated 25-02-2017 shows that there was external damage to the phone. Therefore we find that the contentions of the opposite party regarding exclusion of warranty goes in the circumstances of the case has to be accepted. Issue is accordingly found against the complaisant.
9. Issue No. ii. Having found issue No. i against the complainant that the complaint is liable to be dismissed and is accordingly dismissed. In the circumstances of the case we award no costs.
Pronounced in the open Forum on this the 28th day of September 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant's Exhibits
Exbt. A1 : True copy of Tax Invoice
dt. 26-03-2016
A2 : True copy of brochure
A3 : True copy of letter dt. 06-03-2017
Opposite party's exhibits:
Exbt. B1 : True copy of warranty
B2 : True copy of extract of minutes
B3 : True copy of repair
acceptance form 25-02-2017
B4 : Copy of quotation dt. 27-02-2017
Depositions
PW1 : Lito Baby
DW1 : Hashir Aboobaker Hash
Copy of order despatched on :
By Post : By Hand:
