Orissa

Cuttak

CC/81/2020

Santosh Jena - Complainant(s)

Versus

F1 Info Solutions & Services Pvt Ltd - Opp.Party(s)

Self

31 Mar 2021

ORDER

 

 

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

 

C.C No. 81 /2020

 

Santosh Jena, aged 38 years,

S/O: Basanta Jena,Retd. Govt. Official working in

Survey and Map publication and presently

Residing At:Annapurna Lane,Pithapur,

Cuttack,Near Ganesh Temple,

Pin-753001.                                                         .... Complainant.

  

     Vrs.

 

1.        F1 Info Solutions and Services Pvt. Ltd.,

Plot No.100,1^st Floor,Sahidnagar,Bhubaneswar,

Khurda-751007

 

2.        Apple India Pvt. Ltd. 19^th floor,Concorde Tower C,UB City,

Vittal Mallya Road,Bengaluru,

Karnataka-560001.

 

3.       Gungun Mobile Centre,Patra Market,

      Baliahata,Kendrapara,Odisha-754134.

      Biswa Prakash Behera,

S/O:Dhaneswar Behera,

                          Nuapada,Balisahi,Madhupatna

Cuttack,Pin-753010,Ph No.9348500838.....Opp.Parties.

 

Present:                       Smt. Sarmistha Nath, President(I/C)

                        Sri  L.N.Dash Chaudhury,Member.

 

Date of filing:    12.10.2020

Date of Order:   31.03.2021

 

For the complainant          :     Santosh Jena(self)

For the Opp.Party No.1      :     Exparte.

For the O.P No.2                 :    Mr. Nandakumar,Adv. & Associates.

For the O.P. No.3                :     Self.

 

 

Sri  L.N.Das Choudhury,Member.

                                 

               The present complainant has filed this complaint petition thereby specifically claiming compensation by replacement with a new iPhone7 along with a sum of Rs.15,000/-(Rupees fifteen thousand only) towards compensation, Rs.1,25,000/- (Rupees One lakh twenty five thousand only) towards physical strain and mental agony suffered and Rs.10,000/- ( Rupees Ten Thousand only) towards the cost of his petition and miscellaneous expenses. In response to the said complaint petition, the Opposite party No.3 vide his letter dated.07.12.2020 has denied all liability requesting him to be not considered as any party to the matter though the matter could never been heard specifically due to his non-appearance in any subsequent proceeding while Opposite party No.2 has entered its appearance and filed its written version and though notice was served on Opposite party No.1 but it did not prefer to appear and as such has been set ex-parte.

 

Brief Facts in the case:-

1. That the complainant purchased a phone of make and model iPhone-7 (32 GB) and colour Rose Gold bearing Serial No. FDYC0A8HG7J and IMEI No.355301083690399 from the Opposite party No.3 on dated.19.08.2019 and when he was as such in use of the said phone, he started observing various issues relating to the Phone’s Microphone, Speaker and Battery Stand-By by the month of July 2020. Due to the then ensuing COVID pandemic with restrictions imposed throughout, though he could not visit the service centre but reported the same to the Customer Support Service of Apple Inc. on dated 14.07.2020 vide Case ID:101132944115 and on dated.27.07.2020 with case ID:101143784762 following which an online analysis of the phone was though done but did not yield any result and thereby he deposited the phone physically with the service centre (Opposite party No.1) on dated.07.08.2020 as per the suggestions of  the  aforementioned Support Team. Further the complainant visited Opposite party No.1and thereby submitted his phone for due trouble shooting following which the Opposite party No.1 after requisite verification and validation as to the condition of the phone and checking for any external/internal damages if any, suggested depositing the phone and in pursuance to that after duly verifying the said phone received the same from the complainant for some additional checks vide Job Sheet No.JBBU2008072231955.Further on dated.08.08.2020, Opposite party No.1 again informed the complainant about some possible internal issues which could only be addressed by the Apple Repair Centre at Bengaluru, Karnataka and also suggested the complainant to avail for himself an Extended Warranty Cover worth Rs.4,500/-(Rupees Four Thousand Five Hundred only) as his original warranty was about to expire, which was out rightly denied by the complainant. Again on dated.12.08.2020 the complainant was informed as to some internal damage under the display caused accidentally for which the Opposite party No.1 further demanded Rs.15,000/-(Rupees Fifteen Thousand only) to rectify the issue despite the complainant trying to convince the opposite party No.1 about no such damage having occurred until his depositing the phone, particularly when the said phone was deposited with the Opposite party No.1 only after due verification and checks without any objection or dissent. In pursuance to this discrepancy the complainant demanded the photographs of the phone under repair especially as regards to the internal defect found, which was abruptly denied by the Opposite party No.1 citing it against Apple Company’s internal policy. Though on dated.14.08.2020 and on dated.15.08.2020 the complainant was informed about completion of the said repair but the Opposite party No.1 failed to provide any adequate information as regards to that. The complainant further took up the matter with Apple Support Team and narrated the entire incident following which it was redirected to the escalations team which vide case ID:101161420994 assured the complainant to issue an email to the Opposite party No.1 and redress his issues but unfortunately the said escalations team subsequently informed the complainant reiterating that an internal damage under the display has caused all the malfunction and attributed the same to have been caused by the complainant thereby declaring the phone’s warranty as void. When the complainant further explained the circumstances and the condition of the phone in which he had handed over the same to the Opposite party No.1, the executive in the escalations team assured the complainant in sending a mail to the Opposite party No.1 seeking clarification and reason in the issue. On the contrary upon enquiry by the complainant about receipt of any email from the team executive, the Opposite party No.1was in outright denial of receipt of any such e-mail communication. As and when such follow ups were in progress by the complainant on several occasions the escalations team executive finally after sending a mail to Opposite party No.1 and receiving their reply finally concluded presuming that the phone had been misused and thereby declared the warranty to be void. The complainant in his ANNEXURES-7, 8, 9 and 10 has provided certain documents intending to show false assurances received from Opposite parties at various occasions and further to show resembling complaints and instances showing occurrences similar to the alleged fact in this complaint petition. The complainant finally approached the Consumer Disputes Mediation Centre issuing notice to the Opposite parties but the same was in vain as no significance response was received from any of the parties.
2. That in reply to the said complaint petition, the Opposite party No.1 has preferred not to appear in the said matter and has as such been set ex-parte.
3. That in reply to the said matter Opposite party No.3 has though appeared through his letter dated.07.12.2020 thereby denying all liability and further requesting not to consider him a party to the said matter relying only on the fact that he is reseller and bears no onus as to the service and quality of the said product but he subsequently never appeared or showed any inclination to be heard in that respect.
4. That in reply to the said matter, Opposite party No.2 has preferred to appear in the matter and in pursuant to that has filed a written version specifically denying the alleged facts by paragraph-wise reply and further pleading to dismiss the same for it being based on unsubstantiated facts and being devoid of merits.  The Opposite party No.2 admits the purchase of the phone by the complainant and holds no dispute as regards to the complainant being a consumer under the said act. Further it is the claim of the Opposite party No.2 that few days prior to expiry of the warranty of the said phone the complainant approached the Opposite party No.1 with complaints as stated in the foregoing paragraphs. Further the Opposite party No.2 on behalf of opposite party No.1 has admitted to have issued a job card dated.07.08.2020 and also claims to have informed and received consent of the complainant to send the said phone for diagnosis to Apple Repair Centre pursuant to the grievances under the complaint. It is further the claim of opposite party No.2 that on diagnosis it was found that the phone had suffered accidental damage in the interior of the phone which could not have arisen due to any manufacturing defect but only due to blatant misuse and thereby denying for free of cost in-warranty repairs in line with the Apple’s terms of Warranty as under Annexure-A. The Opposite party No.2 also claims to have offered the complainant to address the issues on payment of the associated costs in repair further stating that even when external damages were not visible, explicit internal damages could still occur without being noticed or perceived until being opened and diagnosed. In its claims under the written version the Opposite party No.2 has heavily relied upon its unique Apple Authorized tools machinery and skills. It was only upon such diagnosis that the accidental damage could be detected further rendering the phone ineligible for any free of cost in-warranty repairs. The Opposite Party No.2 on behalf of the opposite party No.1 denies to have made any false suggestions towards convincing the complainant of internal damages despite of no external damages rather it came to the forefront only upon diagnosis. The opposite party No.2 further claims that the decision of the Apple Repair Centre based on its diagnosis being binding the allegations under the complaint petition are merely manufactured by the complainant to make some deceitful gains at the cost of Opposite party No.2 when the Opposite party No.1 has repeatedly explained the complainant of the Repair Centre’s finding and associated terms of warranty which turns inapplicable as under any damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause  thereby eventually casting doubts on the claims of the complainant and further alleging him to have not come with clean hands terming his claims under the complaint petition to be malafide and devoid of merits.
5. That this commission after going through the materials available on record and perusing the respective documents annexed by the parties, aims to draw the following conclusions towards complete adjudication of the matter:-

1. As a general rule an external damage may not always be indicative of an internal damage but any intervention of external nature causing such internal damage is bound to leave a mark or a proof of such external intervention be it through physical occurrences as tampering, fire, moisture or causes of like nature or be it intervention through virtual means as through software or improper manipulation of the device environment as against the prescribed guidelines associated with the device. In the instant case particularly when the device is a closed unit and when the device was accepted for repairs by the service team (Opposite party No.1) without any reservations after due verifications and checks having been conducted, there still remains a possibility of the internal damage arising without any noticeable external damage but it should have been established after the said device was examined by the expert panel using specialized tools. Merely stating that the internal damage caused had arisen out of misuse would not suffice the matter as the burden of proof shall lie on the party suggesting such internal damage. Further the Opposite party No.2 has though emphasized on the internal damage caused but has not provisioned us with sufficient proof as to the nature/time/source of such occurrence resulting in the internal damage and in these circumstances this commission is not inclined to blindly believe the theory of misuse put forth by Opposite party No.2 particularly when the same is not substantiated by either cogent evidence or a plausible explanation and hence the complainant is entitled for the benefit of doubt. Further the ratio in the matter under TATA Engineering Locomotive Co. Ltd. V.Rajendra Kumar reported in 2019(4) CPR 195 and in Anand Kumar Bansal V. Premier Ltd reported in 2019(4) CPR 238 and Samsung India Pvt. Ltd. V Saurabh Kapooria and others is squarely not applicable in the present case for the reasons stated aforesaid.
2. Any object under repair though momentarily out of his possession continues to be the property of the consumer and under these circumstances the rightful owner i.e. the consumer has all rights to reasonably verify the course and fate of repair which cannot be denied to anyone at any cost or during any material point of time in such repair, provided such demand is feasible and is under legitimate expectation. Restrictive policy, if any, under the terms of purchase or service must explicitly be informed/intimated to the consumer prior to taking up such repair and not to be informed after such a demand has arisen in the ensuing course thereof.  Any such denial prejudices the transparency of the entire process and thereby may be construed as Unfair Trade Practice until disproved. In the instant case, the complainant was denied access to photographs which seems to be no less a reasonable expectation of a consumer especially when such consumer has been pitched up with a cause of an internal damage and his right to ascertain the same is a thereby an indefeasible right particularly when such factum though unknown to any of the parties at any time prior but has come to limelight subsequently during the service/repair. Such an abrupt denial casts doubt not only on the transparency of the entire process but also the source of the factum of internal damage and any attempt to shroud the same may be construed as Unfair Trade Practice. Though the technical expertise and state of the art facilities claimed by the Opposite party No.2 is not in question and may be reasonably relied on but equally the same cannot be laden on the complainant by a mere plea of misuse when such facilities of the Opposite parties have rather failed to substantiate the source/time/nature of such internal damage stated. For imposing conditions of limited warranty the conditions pre-requisite must be well substantiated with a proof or explanation, which is not the case in the matter at hand. On similar terms this fact also cannot be ignored that the internal damage could have occurred at the hands of the complainant knowingly or unknowingly but this commission is not inclined to put the entire liability on him as the burden of proof remains on the party suggesting the internal damage particularly when the said device was accepted for service or repair operations after due validation and checks without any objection and more particularly conceding for a moment that such damage could not be picked by a mere physical inspection but the same should have been substantiated with a valid source/time of cause keeping in view that it is a closed unit and under inspection by state of the art facilities.
3. It is not disputed that the said phone had run into issues, which were conveyed by the complainant to the customer care and the service centre promptly at various occasions, during the validity of the warranty period and in such circumstances it is immaterial at what point of the time in the tenure of such warranty period it was claimed. Neither can any automatic presumption be drawn about the claim to be malafide on that basis alone nor can it be considered as an attempt by the complainant to make some deceitful/unlawful gain  but on the contrary the Opposite parties have not only attempted to linger the matter but also have used the conditions under limited warranty clause to the disadvantage of the complainant by pitching up a plea of misuse when such is not substantiated by sufficient means and hence this commission is also compelled to hold the Opposite party No.1 and 2 deficient in service in as much as by not providing adequate means to the complaint to verify the factum of damage caused by such alleged misuse.

 

ORDER

        In our considered opinion, the Opposite parties No.1 and 2 being jointly and severally liable are hence directed to compensate the complainant adequately to the tune of Rs.35,000/- (Rupees Thirty Five Thousand only)  towards the hardships faced by the complainant and also for depriving the complainant from affording adequate opportunity to ensure the quality of service and further are directed to  conduct repairs without any cost so as to address all the technical  issues and provide him an extended warranty on the said repairs for a further period of six (6) months and in the event of recurrence of any such defect unconditionally provide him with a brand new replacement with the remaining warranty period and provide Rs.3,000/- (Rupees Three Thousand only) towards litigation and miscellaneous expenses  within a period of one month from the date of the present order failing which the amounts shall carry an interest at the rate of 8% per annum from the date of order to the date of realization.

        Further the Opposite party No.3 being the reseller cannot evade liability in its entirety and is there by ordered to pay a sum of Rs.700/- (Rupees Seven Hundred only) as compensation to the complainant within a period of 30 days failing which he shall be liable to pay interest at the rate of 6% per annum from the date of order till the date of realization.

         Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 31^st  day of March,2021 under the seal and signature of this Commission.                                                                                                          

                                                                                                                                   Sri L.N.Das Choudhury

                                                                                                                                         Member

                                                                                                          

                       

Smt. Sarmistha Nath

President(I/C)