Tamil Nadu

South Chennai

CC/407/2016

S.Sibichakkaravarthy - Complainant(s)

Versus

M/s.Apple India Pvt Ltd - Opp.Party(s)

A.Gouthaman

29 Jul 2022

ORDER

                                                         Date of Complaint Filed : 01.12.2016

                                                         Date of Reservation      : 07.07.2022

                                                         Date of Order               : 29.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 407/2016

FRIDAY, THE 29^th DAY OF JULY 2022

S.Sibichakkaravarthy, aged 23,

S/o S.R.Shanmugham,

No.11A Othavadai Street,

Palavansathu,

Vellore-632002.                                                                                                                                                       ... Complainant                               

 

..Vs..

1.Apple Campus,

   Cupertino,

   California,

   United States of America, (USA)

 

2. Apple India Private Limited

   (Registered office)

   19^th Floor,

   Concorde Tower C

   UB City No 24,

   Vittal Mallaya Road,

   Bangalore-560001

   India.

 

3.Imagine Store Forum Vijaya Mall,

    UG 24, Forum Vijaya Mall

    Arcot Road,

    Vadapalani,

    Chennai-600026

    India

 

4.iCare:Imagine, Ampa Skywalk

   Shop 101A,First floor,

   Ampa sky walk,

   Nelson Maikam Road,

   Aminjikarai,

   Chennai-600029.

   India.                                                                                                                                                               ...  Opposite Parties

 

******

Counsel for the Complainant                : S.R.Shanmugham

Counsel for the 1^st Opposite Party         : Dismissed

Counsel for the 2^nd Opposite Party        : M/s. Anand, Samay & Dhruva

Counsel for the 3^rd & 4^th Opposite Parties :M/s. Rajesh Ramanathan

 

     On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties 2 to 4, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to pay the device cost of Rs.85,394/- with interest @ 18% p.a from the date of refusal claim and direct the Opposite Party to pay a sum of Rs.10 lakhs for the mental agony, torture, inconvenience, transport expenses and loss of times are caused to the Complainant and direct the Opposite Party to pay a sum of Rs.10,000/- being the cost of the complaint.

2.     The averments of Complaint in brief are as follows:-

      The Complainant wanted to purchase iPhone 7 Plus 128 GP as the trade practice of advertisement from the Opposite Parties for which he pre-booked the device by paying Rs.5,000/- as an advance to the 3^rd Opposite Party on 02.10.2016 at Chennai from Vellore and on 06.10.2016 the 3^rd Opposite Party called the Complainant to come on 07.10.2016 at 7.00 PM to purchase the cell phone due to that the Complainant went to Chennai to purchase the said phone on 07.10.2016 but at 6.30 PM the 3^rd Respondent called upon the Complainant to come on 08.10.2016 once again since there was shipping delay due to that the Complainant is constrained to stay at Chennai by spending huge amount for boarding and on 08.10.2016 at 11.08 A.M. he went to purchase the said phone and paid Rs.77,000/- with accessories totally paid Rs.85,394/- to the 3^rd Opposite Party and received the said phone and came down to Vellore and opened the cell phone which was already restarted on itself and charge was down due to that the Complainant called the toll free number 180030000330 and reported the problems for which they told him to charge the phone for 4 hours for the 1^st  time for which he charged and did not use the said phone on 10.10.2016 and 11.10.2016. On 12.10.2016 the Complainant switched on the phone and started using it where he found difficult to use the said phone as there was an hang on 3 or 4 seconds in between the usage. Certain options are not worked and he called the 3rd Opposite Party many times but he did not attend the call. On 13.10.2016 the said phone got hanged and full screen was black and loading sign was rotating for nearly 8 to 10 minutes and he tried all the buttons to switch off, at last Apple 4 Symbol appeared and it got switched on. On 14.10.2016 said phone outgoing calls got failed and he was not able to make any calls and he contacted the network operator(Bharathi Airtel)  but they told no issues or problems with the network and it might be issues with the phone and the Complainant verified by transferring sim card to another mobile where it worked and he tried to operate the said cell and save his phone number 9952390489 to "MY NUMBER" option in setting which was UNKNOWN and he could not open it to save his number as the option was not worked and assistive touch call forwarding, call waiting options also not worked.  On 15.10.2016 he contacted 180030000330 and reported the issues and they asked the Complainant to contact 0008001009009 and he spoke to them about all issues for which they asked him to send report through "DIAGNOSTICS AND USAGE" by switching on the internet from the device. After seeing the report, they told the Complainant that there was a "MANUFACTURING DEFECTS OF SOFTWARE" in the device and "OPERATING SYSTEM ERROR and they asked him to connect the phone to his personnel computer through i-Tunes Apple Software to do RESTORE i-PHONE as new so that software could be updated and new software would be installed and he completed the procedure even after that he faced many issues. On 16.10.2016 he contacted 0008001009009 and told them the said issues persisted and they asked him to meet the service centre that is 4^th Opposite Party to verify. On the same day he used the phone which got heated and he informed the said issue to the same number.  On 17.10.2016 he went to Chennai from Vellore and met the 4^th Opposite Party and told them about the issues but they were not keen his complaint and they asked him to erase all datas and reset the phone. After reset, the phone got hanged and certain options were not working in front of the service person and he handed over the said phone (i-plooplus Gold 128 Gb). Device IMEI 359160070585137 to the 4^th  Respondent with RAF (Repair acceptance form) No:IMA1079060 on 17.10.2016 and he subsequently registered the Apple Support at Apple.com and had spoken by many senior advisors from Singapore two or three times per day in between and he had sent detailed mail to Apple Support that night. On 18.10.2016 he had spoken to Apple Support Senior Advisor and in his request he had forwarded certain mails to him and promised that the problem would be solved. On 19.10.2016 he spoke to 0008001009009 where he was informed that all the issues got solved and the cell phone is ready and asked to collect it and the Complainant went to Chennai from Vellore to get the cell phone from the 4^th Opposite Party where it was found that number editing option was not working, assistive touch was hanged in between, deleting option touch and was not working intermittently and general option in settings was not also working in a single touch, all were happened in front of the 4^th Opposite Party service person and he made a call to 0008001009009 to make a complaint and asked the service person there to put a new job card regarding all these issues and took the cell phone back for replacement with RAF NO IMA 1081547. The Complainant is constrained to come down to Vellore and used to talk to senior The complainant is constrained to come down to Vellore and used to talk to senior advisors and Apple technolgies many times a day regarding that but they advised in different manner as nobody knew the specific defect in the said device as different persons spoke at each and every occasion which created mental torture and mental agony to the complainant which could not be measured into coins and he called them every day to enquire regarding the cell phone where he was told to wait because the service Engineers wanted to diagnose the iphone once again and would update and he made calls and spoke to them hours together every day which was a great trouble. On 24.10.2016 he was told that again new software was put to the device and issues got resolved but two issues MY NUMBER and CALL WAITING was not worked as it was found same with other similar devices also and they asked him to get the defective device back but not yet received. The 1^st Opposite Party is the head of the Apple company, 2^nd Opposite Party is registered office in India, 3^rd Opposite Party is the seller and the 4^th Opposite Party is the service person and all the respondents jointly doing unfair trade practice by making falsely Lab that the goods are of a particular standard, quality, grade, composition, style or model and misleading in Complainant to purchase the above defect device with huge amount Rs.85,394/- The said device was not worked as making their statement or visible representation from the date of purchase. The Complainant is constrained to go to Chennai from his place which is nearly 200 kms away to meet the Opposite Party 3 and 4 for the problems of the said device and spent valuable time and got mental torture and agony from 08.10.2016 as the Opposite Party sold the defective device and committed an offense of unfair trade practice by cheating the Complainant and the Opposite Parties are bound to pay compensation for the mental torture and agony for a sum of Rs.10,00,000/- and also liable to pay the device amount of Rs.85,394/-.  Hence the complaint.

3.    Written Version filed by the 2^nd Opposite Party in brief are as follows:-

The 2^nd Opposite Party sell iphones in India through their authorized dealers/resellers. The 2^nd Opposite Party gives a limited one year warranty on its products. If the purchaser of the 2^nd Opposite Party products has any issue with its products within one year from the date of purchase and if during this period none of the warranty provisions are violated by the said purchaser then such device will be serviced or replaced depending on the diagnosis made by the authorised service provider of the 2^nd Opposite Party. The 4^th Opposite Party, who is an authorized service provider had tested the device in question and found that there were some software related issue that has to be rectified due to which the device was not working sufficiently, however the Complainant refused to get collect device. The Complainant was not advised appropriately showing keen interest was empathetically denied. As AASP has very clearly stated that "Reset and restored the iPhone with latest IOS in DFU mode. Ran AST MRI, result passed. Checked he iPhone by playing multiple games, found no restarting issue and multi touch working fine. Checked the iPhone by adding multiple contacts, found contacts saved successfully and no issue. Checked the iPhone by playing online videos through 3G and wifi, found no abnormal heat. Checked the iPhone applications, found all the default apps are working fine. Customer reported issues are not reproduced".  The report statement extract above clearly states that the device in question did not possess any deficiency.

It is true that the complainant approached the for getting his iPhone serviced, however he is concealed the fact that he did not provide them a chance of servicing the device in question efficiently. The Complainant was insisting the 4^th Opposite Party to replace or refund. The 2^nd Opposite Party reserves the right to decide the service options upon the of the device. When the iPhone in question is inspected to discover that there is a manufacturing defect in the device then they will admittedly replace the device. In the present case the Complainant is not aware of the warranty provisions.  The Complainant has approached this Hon'ble Forum with unclean hands and which is evident by the fact that the Complainant did not disclose the fact that he had denied further inspection over software issues and is persistently demanding for a replacement/ refund which would not be available given the present facts. There are deficient in services are strictly denied as false as the iPhone in question is not deprived due to manufacturing defect and it is proven by the 4^th Opposite Party. The Complainant had raised contentions without producing any material evidence. The Complainant has been clearly informed that the device in question will not be eligible for the replacement/ refund without having the AASP ie, 4^th Opposite Party state that the there is a manufacturing defect due to which the device is deprived and  due to reasons contributable to 2^nd Opposite Party. The office of 2^nd Opposite Party  is located in Bangalore and this Complaint is filed in Chennai, hence there is no jurisdiction. Hence the complaint has to be dismissed.

4. Written Version filed by the 3^rd & 4^th Opposite Party in brief are as follows:-…..

     The Opposite Parties Submitted that the Complainant had approached the Opposite Party regarding a software complaint in an Apple iPhone 7 Plus 128 GB (Gold) with serial number SF2LSGCU7HFY9 and IMEI number 359160070585137. All products of Apple including iPhones run on proprietary software known as iOS software. As the said software is the exclusive property of Apple Inc, the 1^st Respondent herein, any issues with the said software has to be addressed only by the 1^st Opposite Party. The answering Opposite Party do not have any authority to inter-operate the software but only follow the service guidelines issued by the 1^st Opposite Party. The 1^st Opposite Party does not authorize or allow even its authorized service providers such as the 4^th Respondent herein to inter-operate with its proprietary software but has only allowed them to rectify any errors by reinstallation of the device using the available software. Inter operation of proprietary software entails multiple copyright and other intellectual property issues, not to mention liability towards breach of trust, confidentiality and technical know-how, none of the service providers authorized by Apple, including the 4^th Opposite Party herein or the Apple Authorized Reseller such as the 3^rd Opposite party herein are given any right to  meddle  with  the  proprietary  software of the 1^st Opposite Party.  The

 

issues raised by the Complainant though are all software related and therefore, the 3^rd and 4^th Opposite Parties can at best attempt to repair. Though the Complainant repeatedly alleges about "certain issues, no clear issues detailed as faced by the Complainant. The Complainant has been dubious and uncertain about the alleged issue with his mobile phone and it is clear that without wanting to disclose the correct facts, the Complainant is only trying to extort monies from the 3^rd and 4^th Opposite Party to gain illegally. It is clear from the Complainants own admissions that upon giving a complain, the Opposite Party had indeed taken the phone under repair acceptance form (RAF) the no. IMA1079060 on 17^th October 2016, in the complaint form, the Complainant has spelt out specific details of the "issues" in his mobile phone, which were rectified by the 4^th Opposite Party. On 19.10.2016, came out with fresh set of complaints relating to the software of the phone including that of “Assistive Touch", which though were obviously well within the knowledge of the Complainant. The 4^th Opposite Party, out of professional courtesy, immediately again took the phone taken in for service under RAF no. IMA1081547 on 19.10.2016. This clearly proves the due diligence and bonafide on their part. They did not advise or demand the Complainant to talk to any advisors leave alone those at Singapore. The 3^rd  and 4^th Opposite Party, on both occasions, had appropriately addressed the complaint/service request made by the Complainant. On the last occasion, ie, on 24.10.2016, upon carrying out the reset and reinstallation of the software, the 4th Opposite Party informed the Complainant that the phone was ready for use. But, the Complainant still insisted about "certain issues" not being addressed on his phone and refused to take back the phone for no reason. It is denied that the phone handed over to the 4^th Opposite Party had any issues including MY NUMBER or CALL WAITING. Admittedly he has not even received the same, till the date of complaint, from 4^th Opposite Party. The Complainant's unwillingness to take back the corrected device is indicative of his malafide intention of attempting to take undue advantage of the situation and thereby extort the Opposite Party parties efficiently and effectively of huge monies, inspite of rectified his handset.  They vehemently deny the allegations of fraud and unfair trade practice as baseless and imaginative. They are well known for their high quality services for Apple devices and is reputed among the customers and trade circles. They do not involve in any advertising, leave alone misleading advertisements about their products and the  products manufactured by the 1^st  Opposite Party are well known for their quality and are being purchased by customers for its sheer brand value and the prestige associated therewith. Even according to the Complainant herein, they have never rejected the complaints repeatedly and baselessly made by the Complainant and have also taken due care and diligence in attending the issues complained by dutifully servicing the device. The alleged mental torture or agony experienced by the Complainant does not have any nexus with the Opposite Parties, it is never been the case of the Complainant that either they had ever refused to service the device, when presented for or have in so manner caused deficiency of service as understood within the meaning of Consumer Protection Act. It is vehemently denied that the and 4th Opposite Party herein did not reply to the notice issued by the Complainant. Upon receiving the frivolous notice Issued by the Complainant through his advocate, they caused a reply to be issued through their advocates on 2nd December 2016 and the same was received by the Complainant's advocate on 8^th December 2016. The present complaint is completely frivolous, vexatious and amounts to an abuse of process of law. The complaint does not disclose any cause of action and is therefore liable to be rejected in liminie. Further, the Complainant has failed to make out any case for unfair trade practice or deficiency in service. There are no merits to the above complaint, either in facts or in law. Hence prayed to dismiss the complaint.

5.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-18  were marked. The 2^nd  Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd Opposite Party, documents Ex.B-1 to Ex.B-2  were marked. The 3^rd & 4^th   Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 3^rd & 4^th  Opposite Party, documents Ex.B-3 to Ex.B-6  were marked.

6.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

     It is not in dispute that the Complainant has purchased apple iPhone 7 plus 128 GB on 08.10.2016 for a sum of Rs.85,394/- inclusive of accessories. It is in dispute that immediately after the purchase of the said iPhone, the Complainant had faced several issues in the device which left him of unuse and the issues were not resolved in full by the Opposite Party 2 to 4. Even as per the Mail dated 25.10.2016 sent to him which was marked as Ex.A-14, certain issues were not resolved by the Opposite Party.

      The Contention of the Complainant is that when he opened the cell phone it restarted by itself and charge was down, immediately he called the customer care tollfree number and reported the issue, for which he was advised to charge the phone for 4 hours for the first time, as per the advice he charged and did not use the said phone for 2 days that is on 10.10.2016 and 11.10.2016. when on 12.10.2016 he switched on the phone and started using, the phone kept on hanging for 3 or 4 seconds in-between the usage and certain options did not work hence he tried calling the 3^rd Opposite Party but went in vain. On 13.10.2016 the said phone got hanged and Full screen was black and loading sign was rotating for nearly 8 to 10 minutes, when he tried to switch off, apple symbol appeared and it got switched on. On 14.10.2016 the outgoing calls facility got failed and he was not able to make any calls and he contacted the network operator (BHARATHI AIRTEL) and they informed that there is no issue in the sim card and the issue is with the phone and on such information he transferred the sim card on another mobile where it worked. He tried to save his mobile number to “MY NUMBER” option in setting and the same could not be saved as the said option was not working and also assistive touch call forwarding, call waiting options also not worked. On 15.10.2016 he had contacted the customer care tollfree number and reported the said issues, for which he has been provided with as contact number along with his case ID and when contacted to report about the said issues he was asked to send report through “DIAGNOSTICS AND USAGE” by switching on the internet from the device. After seeing the report it was informed to him that there was a manufacturing defects of software in the device and operating system error and requested him to connect the phone to his personal computer through i-Tunes apple software to do restore iPhone as new so that software could be updated and new software would be installed. He completed the procedure as advised even thereafter he faced many issues. On 16.10.2016 he contacted the same number and reported the issues persisted, for which he was asked to meet 4^th Opposite Party, being the service centre. On the same day he used the phone which got heated and he informed the said issue to the same number. On 17.10.2016 he went to Chennai from Vellore and met the 4^th Opposite Party and reported about the issues, the 4^th Opposite Party was not keen to his complaint and they have asked him to handover the phones after erasing all data and after resetting the phone. After reset the phone got hanged and certain options were not working Infront of the service person of the 4^th Opposite Party and he handed over his iPhone as found in Ex.A-3, being repair acceptance form, RAF number IMA1079060 dated 17.10 2016 at 16:28:17 wherein the problem reported were touch issue, auto restart, auto shutdown, unable to save phone number, multi touch not working intermittently, many option are not visible, and condition of equipment mentioned as normal usage need to check internal conditions and in service type mentioned as under warranty. Ex.A-4 is the Acceptance Mail dated 17.10.2016, for receipt of the device for repair of the issues reported in Ex.A-3 He had also registered the issues reported on 17.10.2016 and had spoken by many senior advisers from Singapore 2 or 3 times in between and he had sent detailed mail to apple support that night. On 18.10.2016 he had spoken to apple support senior adviser and on request he had forwarded certain mail and promised that the problem would be solved, as found in Exs.A-5 to A-8. On 19.10.2016 he again spoke to the contact number provided to him and it was informed that all the issues got solved and the cell phone is ready and asked him to collect the same from the 4^th Opposite Party, as found in Ex.A-9, hence he went to Chennai from Vellore to collect the cell phone on receipt he found that the number editing option was not working assistive touch was hanged in between, deleting option touch was not working intermittently and general option in settings was also not working in a single touch, all the said issues happened in front of the service person the 4^th Opposite Party and from there he made a call again to the contact number provided and asked the service person of the 4^th Opposite Party to put a new job card and took the cell phone back for replacement, as found in Ex.A-10, being the Acceptance Mail dated 19.10.2016, for receipt of the device for repair of the issues reported and Ex.A-11 is the Repair Acceptance Form dated 19.10.2016 at 20:56:37. By Ex.A-12 being the mail dated 20.10.2016 sent to the Complainant seeking certain files and Ex.A-13 is the Mail dated 20.10.2016 at 12:47 am wherein it was mentioned that the Complainant would be called on 20.10.2016 around 11.am, thereafter only 25.10.2016 the Complainant had received a mail, wherein on diagnosis it was mentioned that “checked with similar model iPhones, found unable to edit my number option and same response for all forwarding and call waiting option. No issue with the user iPhone.” And he was asked to collect the device as the repair was completed and ready for delivery at the end of 4^th Opposite Party. As the device was not repaired in full for the usage of the Complainant, which constrained him to cause a legal notice dated 26.10.2016 to the Opposite Party 1 to 4 (Opposite Party 1 was given up by the Complainant), as found in Ex.A-15, wherein the Complainant had claimed for return of the device amount with compensation for mental torture and cost of the notice, the Opposite Party 2 to 4 herein on receipt of the said notice, as found in Ex.A-16 and A-17, for which the 3^rd and 4^th Opposite Party had replied by their reply notice dated 02.12.2016, on perusal of the records the said reply notice was received by the Complainant after filing of the Complaint.

     The Contention of the 2^nd Opposite Party is that the iPhones sold in india by them through their authorized dealers/ re sellers. The consumer who wilfully destroyed, damaged or negligently handled a product are not eligible to claim any relief and also when there is breach of warranty policies of manufacturers cannot claim any relief. The provisions and terms apply warranty specifically exclude damage of products, which is the case in the present matter. In the present case the Complainant had suppressed the fact that he had denied complete service of the iPhone in question and is frivolously demanding for replacement/ refund of the iPhone. The Complainant had also suppressed the fact that the said iPhone was specifically inspected by the 4th Opposite Party and had found no damage and checked efficiently with all the tests. The said iPhone could not be serviced and provided trouble free due to the Complainant’s own fault and no fault could be attributed to the 2^nd Opposite Party or the device supplied by the 2^nd Opposite Party. In the present case the 4^th Opposite Party being the authorized service provider of the 2^nd Opposite Party had diligently undertook efforts to diagnose the problems with the iPhone in question. On inspection on the said iPhone the 4^th Opposite Party had found there was no fault had denied for the replacement as demanded by the Complainant. The Complainant had approached this commission with unclean hands by suppressing material facts as if there is a damage to his device. It is for the Complainant to prove his allegations in relation to the complaint and mere bald allegations against the 2^nd Opposite Party is not sufficient to prove his case. The Complainant is well aware that the damage to his iPhone occurred on his own negligent/fault and further he is well aware when there is breach in the terms of 2^nd Opposite Party is not liable for and required to compensate for such petty issues that could be easily resolved upon submission and inspection by the Complainant. The liability of a manufacturer arises only and only when there is inherent defect in the product when the product was manufactured (before the product was sold to the Complainant) and the manufacturer cannot be made liable, until it is proved by adducing expert evidence that there was any manufacturing defects and the present case is not related to any manufacturing defect with the farthest stretch of imagination. Further contended that the warranty of 1 year from the date of purchase could be applicable when the warranty provisions are not violated by the purchaser then such device would be serviced or replaced depending on the diagnosis made by the authorized service provider of the 2^nd Opposite Party. The 4^th Opposite Party had found that there were some software related issues that has to be rectified due to which the device was not working sufficiently, which the Complainant refused to take back his device. In their report, it is clearly stated that “Reset and restored-issues are not reproduced”, by which statement could clearly show that the device in question did not posses any deficiency. The Complainant had concealed the fact that he did not provide the 2^nd Opposite Party a chance of servicing the device in question efficiently, but the Complainant was insisting the 4^th Opposite Party to replace or refund which option is left with the 2^nd Opposite Party based upon the condition of the device when they were inspected to discover that there is a manufacturing defect in the device. But in the present case the Complainant without knowing the warranty provisions had filed a frivolous complaint. The Contentions of the 3^rd and 4^th Opposite Party are that all the products of apple including iPhones run on proprietary software known as iOS software and the said software is the exclusive property of apple Inc. (the 1^st Opposite Party), any issues with the said software has to be addressed only by the 1^st Opposite Party, hence the 3^rd and 4^th Opposite Party do not have any authority to inter-operate the software but only follow the service guidelines issued by the 1^st Opposite Party. Its authorized service providers were allowed only to rectify any errors by reinstallation of the device using the available software and were not authorized to inter-operate with its proprietary software. As the inter-operation of proprietary software entails multiple copyrights and other intellectual property issues, not to mention liability towards breach of rest, confidentiality and technical know-how, none of the service providers authorized by apple, were given any right to meddle with the proprietary software of the 1^st Opposite Party. The issues raised by the Complainant though were all software related they can at best attempt to repair the errors by resetting/reinstalling the handset to factory settings, which rectifies the errors majority of occasions. Infact the issue of the Complainant has now been completely rectified through various updates issued by the 1^st Opposite Party and the handset was ready for use long ago, but the Complainant refused to take back the handset and has gone on to accuse the 3^rd and 4^th Opposite Party of during unfair trade, which is untrue, made with malafide intentions to bring down their reputation and good offices, apart from attempting to extort unlawfully. With regard to the allegations of the MY NUMBER option, the said issue was found out in many handsets at the beginning which was rectified by resetting the phone through personal computer, as such the said issue of the Complainant was rectified and hence the same issue raised again is an ill lie. Further the Complainant faced many issues after the software was updated or fresh software was installed, were denied. The Complainant repeatedly alleged about “certain issues” without providing clear details as to the issues faced by him, and without disclosing the correct facts about the issue with his mobile would clearly show that he is trying to extort money from them to gain illegally. The issues raised by the Complainant on 17.10.2016 were rectified by the 4^th Opposite Party, the Complainant again on 19.10.2016 came out with fresh set of complaints relating to the software of the phone including that of “  touch”. They do not find any reason for Complainant to withhold some of the issues while giving his complaint for service except to put the 3^rd and 4^th Opposite Party in bad light and to mislead this commission. The 4^th Opposite Party out of professional courtesy again took the phone for service on 19.10.2016, would clearly proves their due diligence and bonafide of offering the best services in the industry for the devices of 1^st Opposite Party. They did not advise or demand the Complainant to talk to any advisers leave alone those at Singapore, when they on both occasions had appropriately addressed the complaint/service request made by the Complainant. On the last occasion that is on 24.10.2016 the issues were rectified and was ready for use, the Complainant still insisted about certain issues not being addressed on his phone and after throwing huge tantrums at the 4^th Opposite Party’s office and had rudely refused to take back the phone for no reason. Even in the complaint the Complainant failed to disclose what issues still persisted in his phone and the reason for not taking return of the phone handed over to the 4^th Opposite Party for repair and it was denied the phone handed over to the 4^th Opposite Party had any issues including MY NUMBER or CALL WAITING. They are well known for their high-quality services for apple devices and is reputed among the customers and trade circles, and they do not involve in any misleading advertisements about their products. The allegations of fraud and unfair trade practice were denied as baseless and imaginative. Even according to the Complainant they have never rejected the complaints repeatedly and baselessly made by the Complainant and have also taken due care and diligence in attending the issues complained by dutifully servicing the device. While so the alleged mental torture or agony experienced by the Complainant does not have any nexus with the 3^rd and 4^th Opposite Party. The allegation of the legal notice sent by the Complainant was not responded by them is denied. The complaint does not disclose any cause of action and the Complainant had failed to make out any case for unfair trade practice or deficiency in service, hence the complaint is to be dismissed with exemplary costs.

      On careful reading of the Exhibits filed by the Complainant, 2^nd Opposite Party, 3^rd& 4^th Opposite Party, by Ex.A-3, being repair acceptance form, RAF number IMA1079060 dated 17.10 2016 at 16:28:17 it is clear that the Complainant had reported the issues with regard to touch issue, auto restart, auto shutdown, unable to save phone number, multi touch not working intermittently, many option are not visible, and condition of equipment mentioned as normal usage need to check internal conditions and in service type mentioned as under warranty. On 19.10.2016 he again spoke to the contact number provided to him and it was informed that all the issues got solved and the cell phone is ready and asked him to collect the same from the 4^th Opposite Party, as found in Ex.A-9, hence he went to Chennai from Vellore to collect the cell phone on receipt he found that the number editing option was not working assistive touch was hanged in between, deleting option touch was not working intermittently and general option in settings was also not working in a single touch, all the said issues happened in front of the service person the 4^th Opposite Party and from there he made a call again to the contact number provided and asked the service person of the 4^th Opposite Party to put a new job card and took the cell phone back for replacement, as found in Ex.A-10, being the Acceptance Mail dated 19.10.2016, for receipt of the device for repair of the issues reported. By Ex.A-9 it was informed to the Complainant that his device repair is complete and is ready for delivery, upon which the Complainant had visited the 4^th Opposite Party for collecting his device and on receiving the same he found that again touch screen was not working at times in front of the service person as well as call waiting, call forwarding my number and general options were not working, hence he had given back the device and a fresh complaint was raised as found in Ex.A-11 is the Repair Acceptance Form dated 19.10.2016 at 20:56:37 and the acknowledgement for the fresh complaint raised as well as for receipt of the device provided to the Complainant, which is marked as Ex.A-10, being the Acceptance Mail dated 19.10.2016. On 25.10.2016 the Complainant received a mail which was marked as Ex.A-14 wherein it is mentioned as the device repair is complete already for delivery and mentioned in the diagnosis column that “check with similar model iPhones, found unable to edit my number option and same response for call forwarding and call waiting option. No issues with the user iPhone.”, which clearly shows that though the issue raised is one of similar nature regarding touch issue, unable to save phone number/unable to edit my number option were found to be reported under Ex.A-3 as well as under Ex.A-10 and certain other issues regarding call forwarding and call waiting options were reported under Ex.A-10, except touch issue, the other issues were not found to be rectified instead it is reported that the other issues like unable to edit my number option, call forwarding and call waiting option when checked with similar models the issues exist which could not be rectified by the 2^nd to 4^th Opposite Party would clearly amounts to the manufacturing defect in the Complainant’s device too, which do not require any expert evidence to prove the manufacturing defect and the contentions of the 2^nd Opposite Party that they have not been provided with a chance of servicing the device efficiently and on manufacturing defect, in spite of the device being lying with 4^th Opposite Party for many number of days and the contention of the 3^rd and 4^th Opposite Party that the Complainant was insisting for replacement or refund of his device, no documents in support of the said contention was produced and the same has not been proved by them, hence the above contentions of the 2^nd, 3^rd& 4^th Opposite Party are not sustainable. Further the Opposite Party 2 to 4 are well aware of the device model of the Complainant which suffers certain issues and they would have certainly advised for replacement or refund. Customers like the Complainant with fond hope of using a world wide famous mobile of the 1^st Opposite Party spending a huge amount believing its performance, clarity on usage and services availability, having faced certain issues immediately after the purchase, any prudent man would get disappointed.

The following Judgements relied up by Opposite Party 3 and 4;

i)      The order passed by the Hon’ble State Commission, Delhi on 30.05.2019 in Mr.Ankur Jain Vs. M/s Skoda auto India Pvt Ltd & Other, it was held that manufacturing defects needs expert opinion.

ii)     The order passed by the Hon’ble National Consumer Disputes Redressal  in R. Baskar Vs. D.N. Udani And Ors, On 3^rd October, 2006, it was observed “further, the vehicle was repaired by the Opposite Party and kept ready for delivery still the Complainant refused even to test ride the vehicle. As refusal to take delivery leads us to the conclusion that Complainant is only interested in refund of the amount”.

iii)     the order passed by the Hon’ble National Consumer Disputes Redressal Commission in

R. Kumar Kwatra Vs M/s. HCL Infosystems Ltd & Anr.And Mr. Neeraj M.D Techsmart Systems Pvt Ltd,

 

It was observed in para No.p:

“9.More importantly, as rightly noted by the State Commission no technical evidence was produced by the Complainant to prove before the District Forum that the lap top which he had purchased form Opposite Party No. 1 was not functioning properly and continued to suffer from defects at the time the complaint was filed by him. Considering the stand taken by the respondents that no defect in the lap top was found by them, the Complainant ought to have examined some technical expert to prove that the lap top purchased by him was not working properly and continued to suffer from one or more defects. We are in agreement with the State Commission that in the absence of such a technical evidence, the District Forum was not justified in holding that the lap top purchased by the Complainant was defective. In fact, the contention of the learned counsel for the respondent is that the Complainant has made it a practice to purchase laptops, use them for some time and then seek refund or replacement alleging defects. He states that this was not done only with the respondent when the first Toshiba lap top was purchased, but also with another company HP. He also states that on one occasion the Complainant had forcibly detained their mechanic, and they had to seek police aid, to rescue him. We, however, do not wish to go into those allegations, since in view the Complainant has otherwise failed to prove any defect in the laptop”.

         Considering the facts and circumstances of the instant case, the above Judgements relied upon by the Opposite Party 3 and 4 would not apply to the instant case.

      The 2^nd, 3^rd and 4^th Opposite Party having failed to resolve the entire issues of the device of the Complainant taking advantage of the issues has not been properly addressed by the Complainant, is not sustainable. And under Ex.A-14 having reported that certain issues exist in similar models iPhones would clearly shows that the 2^nd to 4^th Opposite Party have acted negligently and lethargically failed to resolve the issues of the device of the Complainant in toto. Therefore, we are of the view that the 2^nd to 4^th Opposite Party have committed deficiency of service and thereby had caused mental torture to the Complainant. Accordingly Point No.1 is answered.

Point No.2 and 3:-

     As discussed and decided Point No.1 in favour of the Complainant, the Opposite Parties 2 to 4 are directed jointly and severally to pay a sum of Rs.85,394/-  being the device cost, together with interest at the rate of 9% per annum from the date of filing i.e., 01.12.2016 till the date of this order, and to pay a sum of Rs.25,000/- towards mental agony and also to pay a sum of Rs.3,000/- towards costs. Accordingly, Point No.2 is answered in favour of the Complainant. As Point Nos 1 and 2 are answered in favour of the Complainant, the Complainant is not entitled for any other reliefs. Accordingly Point No.3 is answered.

In the result, the complaint is allowed in part. The Opposite Parties 2 to 4 are directed jointly and severally to pay a sum of Rs.85,394/- (Rupees Eighty Five Thousand Three Hundred and Ninety Four Only) being the device cost, together with interest at the rate of 9% per annum from the date of filing i.e., 01.12.2016 till the date of this order, and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards mental agony and also to pay a sum of Rs.3,000/- (Rupees Three Thousand Only) towards costs, to the Complainant, within 8 weeks from the date of this order, failing compliance, the above amounts shall carry interest at the rate of 9% p.a from the date of this order till the date of realisation.

          In the result this complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 29^th  of July 2022.  

 

 

S. NANDAGOPALAN                                                             T.R. SIVAKUMHAR                                                          B.JIJAA

         MEMBER II                                                                           MEMBER I                                                             PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	08.10.2016	Xerox copy of Tax Invoice of 3rd Opposite Party
Ex.A2	16.10.2016	Xerox copy of G Mail sent by Apple Support 1st Opposite Party
Ex.A3	17.10.2016	Xerox copy of Repair acceptance form of 4th Opposite Party
Ex.A4	1.10.2016	Xerox copy of repair acceptance form RAF No.IMA1079060 of 4th Opposite Party
Ex.A5	18.10.2016	Xerox copy of G.Mail by apple support -1st Opposite Party
Ex.A6	18.10.2016	Xerox copy of G.Mail sent by the Complainant
Ex.A7	18.10.2016	Xerox copy of G.mail sent by Apple Support 1st Opposite Party
Ex.A8	18.10.2016	Xerox copy of G.mail by apple Support -1st Opposite Party
Ex.A9	19.10.2016	Xerox copy of G.mail sent by 4thOpposite Party
Ex.A10	19.10.2016	Xerx copy of G.mail sent by 4th Opposite Party
Ex.A11	19.10.2016	Xerox copy of G.main Acceptance Form of 4th Opposite Party
Ex.A12	20.10.2016	Xerox copy of G.mail by the Apple Support – 1st Oppsoite Party
Ex.A13	2010.2016	Xerox copy of G.amil by the apple Support – 1st Opposite Party
Ex.A14	25.10.2015	Xerox copy of G.mail by the 4th Opposite Party
Ex.A15	26.10.2016	Xerox copy of legal ntice to the Opposite Party
Ex.A16		Copy of Served acknowledgement cards of 2nd and 3rd Opposite Party
Ex.A17		Copy of Notice servd to the 4th Opposite Party information issued by Main Post Office, Vellore.
Ex.A18		Copy of Reply Notice

List of documents filed on the side of the 2^nd Opposite Party:-

 

Ex.B1		Copy of annexure
Ex.B2		Copy of Apple One (1) year Limited Warranty

 

List of documents filed on the side of the 3^rd & 4^th Opposite Party:-

 

Ex.B3	04.05.2015	Autherisation of Rmanan executed by Opposite Party
Ex.B4	16.07.2015	Extract of contract between 1st Opposite Party and 3rd Opposite Party pertaining to Authorised Service Provider engagement
Ex.B5	02.12.2016	Copy of the reply issued by 2nd 3rd Opposite Party to Complainant’s Advocate
Ex.B6	08.12.2016	Copy of Acknowledgement

 

 

 

 

S. NANDAGOPALAN                                                                T.R. SIVAKUMHAR                                                      B.JIJAA

         MEMBER II                                                                               MEMBER I                                                        PRESIDENT