IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Wednesday the 18th day of August, 2021
Filed on 16.10.2019
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R, BA, LLB(Member)
In
CC/No.259/2019
Between
Complainant:- Opposite parties:-
Smt. Aswathi.R 1. Onsite go
Sreelakom Rep: by its CEO, Mr. Kunal
Puthupally South.P.O Kushwah Chambers,
Kayamkulam Makwana Road, Marol,
Alappuzha Andheri East, Mumbai
(Adv. R.Lekha) Maharashtra-400059
(Adv. Smt. P.S.Geethakumari)
2. Amazon Rep:
Rep: by Mr. Amit Agarwal
Global Senior Vice President, ,
Brigade Gateway, 8th Floor
26/1, Dr. Rajkumar Road,
Banglore-560055,Karnataka
(Exparte)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly discussed are as follows:-
On 06.07.2017 complainant purchased Lenova Z2 plus (Black) phone through Amazon for an amount of Rs.13,497/- and the amount was paid through debit card. At the time of purchase the phone had a warranty for one year and the complainant had availed extended warranty from the 1st opposite party M/s Onsite go.
On 30.12.2018 complainant lodged a complaint in the company website of 1st opposite party requesting service of her phone on ground of “Intermittent shut down”. The complaint was acknowledged by reference number 181230-000088 via a confirmation E-mail on the same day. As advised in the e-mail complainant packed her phone and the 1st opposite party collected it from her house. After 20 days complainant contacted the customer service and came to know that the phone has not reached 1st opposite party’s office at Pune till date.
On 04.02.2019 complainant received an e-mail from M/s Humali, risk analyst onsite go that the phone cannot be repaired as there was screen damage. Again on 06.09.2019 another e-mail was received saying to ignore the prior e-mail and the reason to reject the claim was pre-existing water log. There was no incident of water logging in the complainant’s phone till date and the 1st opposite party had denied the complainant’s claim unjustly with lame excuses.
Complainant has got every right to get her phone repaired or if cannot be repaired they are responsible for replacing her phone with a new phone. The complainant’s phone was only one and half years old. Complainant had availed extended warranty from 06.07.18 to 06.07.19 from the 1st opposite party. The act of the 1st opposite party amounts to deficiency in service and unfair trade practice and the complainant is entitled to either refund the present purchase of phone or get it repaired. Complainant is also claiming a compensation for Rs.25,000/-.
2. 2nd opposite party remained exparte.
1st opposite party filed a version mainly contenting as follows:-
Complainant has failed to understand or deliberately chosen to suppress material facts. This opposite party is not an insurance company and it provides after sales services in the form of extended warranty. Complainant had purchased a plan of extended warranty which will become active after the warranty of the company. The extended warranty covers every issue in the device that occurs organically or in simple terms, occurs on its own without any external factors ie, issues like physical damages, liquid damages, power surges etc. are outside the scope of the programme even if they are covered under the manufacturer’s warranty.
The complainant had opted for the onsite go one year extended warranty for mobile pack which provided her one year of extended warranty up to a maximum value of Rs.13,497/- being the cost of price of the handset. Upon purchase the terms and conditions kit was delivered to the complainant on 11.07.17. The complainant registered a complaint on 30.12.2018 with this opposite party regarding intermittent shut down of the device. Since there was no authorize service centre in Kerala this opposite party scheduled a reverse pickup with courier partners. The product was picked up from the complainant on 06.01.19 and delivered to the concerned office on 22.01.19 and it was sent to the authorized service centre on 23.01.2019.
On 04.02.2019 the complainant was informed by a call and e-mail that on account of pre-existing damage the warranty is lapsed and her product cannot be repaired. The copy of the estimate from the service centre describing the physical damage along with the picture of broken screen was shared to the complainant. A correction e-mail was sent verifying that the rejection was on account of pre existing damage and not liquid damage as erroneously mentioned in the earlier e-mail. Complainant shall not be allowed to take advantage of a warranty plan that has become void due to her own mishandling of the product. Complainant has failed to set out any case for deficiency in service or unfair trade practice and hence the complaint may be dismissed with cost.
3. On the above pleadings following points were raised for consideration :-
- Whether there is deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get an order to get the phone repaired or in the alternative whether she is entitled to get refund of the purchase price ie, Rs.13,499/- ?
- Whether the complainant is entitled to realize an amount of Rs.25,000/- as compensation ?
- Reliefs and costs?
4. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A4 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B5 from the side of 1st opposite party.
5. Points No. 1 to 3:-
PW1 is the complainant in this case.She filed an affidavit in tune with the complaint and marked Ext.A1 series and A2 to A4.During cross examination Ext.B1 was marked.
RW1 is the State Head of the 1st opposite party.He filed an affidavit in tune with the version and marked Ext.B2 to B5.
Pw1, the complainant in this case on 6/7/2017 purchased a Lenovo Z 2plus mobile phone for Rs. 13,499/- from the 2nd opposite party M/s Amazon. There was a one year warranty for the phone from the manufacturer ie, from 6/7/2017 to 6/7/2018. PW1 took an extended warranty from the 1st opposite party for one year ie, from 6/7/2018 to 5/7/2019. Now the case of PW1 is that some complaints developed upon the phone and a repair request was send to the 1st opposite party on 30/1/2018 through e-mail. The complaint was shown as “intermittent shutdown”. As per the terms and conditions of the warranty the 1st opposite party had a Free pickup & Drop or at –Home Repairs. Accordingly the mobile phone was sent to the 1st opposite party through a carrier arranged by them. Mobile phone was sent for repairs to a company at Secundrabad, and on 23/1/2019 it was informed that since it was touch damaged it was out of warranty condition. Ext.A1 series are the communications between PW1 and the 1st opposite party. As per the request of PW1 the phone was returned without repairs since they demanded amount for repairs on a contention that the damage is not covered by extended warranty conditions. According to RW1 who is the State Head at Kerala of the 1st opposite party even at the time of issuing extended warranty, the terms and conditions were given to PW1 in which it was clearly stated that issues like physical damage, liquid damage, Power surges etc are outside the scope of warranty. Per contra the contention of PW1 is that at the time of availing extended warranty only Ext.A3 certificate of Protection was given to her. Now according to PW1 since the damage occurred during the period of extended warranty 1st opposite party is liable to repair the phone. On the other hand according to RW1 since it was a pre existing damage it is not covered by extended warranty. Ext.B1 is a photo graph showing that there was damage on the touch screen which is pre-existing damage.
Ext.B2 is the terms of service of extended warranty. Term No.4 shows that the company had offered FREE PICK & DROP OR AT –HOME REPAIRS. As per term No.7 it was stated that they will cover the full value of the device till the end of the plan. In Ext.B2 it is stated that Onsitego Extended Warranty covers every issue in the device that occurs organically or in simple terms “ on its own” and without any extended factor. That means issues like physical damage, liquid damage, power surges etc. are outside the scope of the program, even if they are covered under manufacturer’s warranty. So from Ext.B2 it is pellucid that physical damage, liquid damage, power surges etc are outside the scope of extended warranty. Ext.B1 shows that there was a touch screen damage which will come under physical damage and so as rightly shown in Ext.B2 it will not cover under the extended warranty. Now the question to be looked into when was the damage occurred. According to PW1 on 30/12/2018 she sent an email to the 1st opposite party stating that the mobile phone developed problem and the complaint was “intermittent shutdown”. A series of complaint are shown in online and one can only choose the same which is available in the format. Admittedly from Ext.B2 it can be seen that there was touch screen damage. As per the terms and conditions of Ext.B2 extended warranty the company had arranged one courier ( M/s Fedex) to collect the phone from the complainant. Admittedly the person who collected the phone from the complainant has not noted the condition of the phone at the time of collecting it. Since the 1st opposite party have arranged courier service to collect the phone it was their duty to show the present condition of the phone to the complainant and to put it in writing. Admittedly no verification is seen done by the courier company at the time of collecting the phone. It was contended by the learned counsel appearing for the opposite party that the phone was packed by the complainant and handed over to the courier company. In the argument note a contention is also taken that the damage might have occurred either from the hands of complainant or in transit and M/s Fedex is not made a party in the complaint. However such a contention is conspicuously absent in the version filed by the 1st opposite party. If the damage occurred at the hands of complainant it was a duty to the 1st opposite party to verify the same at the time of collecting it. Now they cannot turn around and say that it might have happened either at the hands of the complainant or during transit. Admittedly the complaint occurred during the pendency of extended warranty. It is true that as per Ext.B2 terms and conditions physical damage, liquid damage, Power surges etc.. are not covered under the extended warranty. PW1 has got a case that she was supplied with only Ext.B3 certificate of Protection and the terms and conditions were not furnished to her. During cross examination PW1 admitted that she had taken extended warranty without understanding the terms and conditions. She further stated that the damage which is seen in Ext. B1 was not available when she handed over the phone to the courier service arranged by the 1st opposite party. The physical damage was not brought to her notice at the time after the phone was collected from her. Only through an email dated. 4/2/2019 it was informed to PW1 that there is physical damage. Ext.A4 is an Estimation Copy dated. 23/1/2019 issued from M/s SS Electronics, Secunderabad after verifying the phone. According to them there was touch damaged and so it was out of warranty condition and amount Rs.5,089/- is required to repair the phone. Though Ext.A4 is dated 23/1/2019 according to PW1 it was communicated to her only on 6/2/2019. The complaint was lodged on 30/12/2018 and the phone was picked up from her house on 6/1/2019.
Admittedly the mobile phone developed complaints during the time of extended warranty. Now the case of PW1 is that the complaint was “intermittent shutdown”. On the other hand according to RW1 the phone had physical damage and so it is beyond the terms and conditions of extended warranty. Though from Ext.B1 it is seen that the phone had touch damage according to PW1 at the time of giving the same to the courier company there was no such damage. It was the duty of the 1st opposite party to verify the phone at the time of pickup from the complainant and prepare a list of damages. As a matter of fact touch screen damage is visible through naked eye and so it had to be ascertained by the courier company at the time of Picking up and complainant cannot be blamed for that. It is true that from Ext.B2 it can be seen that the physical damage is not covered in the extended warranty. However at the time of picking up it was not brought to the notice of the complainant that the phone had a physical damage. After collecting the phone on 6/1/2019 they are not supposed to sent a letter(Ext.B3). On 23/1/2019 when the phone had touch problem. If the phone had physical damage it was the duty of the 1st opposite party to show the same at the time of picking the phone ie, on 6/1/2019. They are not supposed to deny the right of complainant on a contention that it was having a pre –existing damage and it is not covered by conditions of extended warranty. In said circumstances we are of the view that complainant is entitled to get an order to get the phone repaired since the damage occurred during the period of extended warranty.
The complaint was intimated to the 1st opposite party on 30/12/2018 and on 23/1/2018, Ext.B3 letter was generated stating that the mobile phone is having touch problem. The mobile phone was returned without repairing on a contention that Rs.5,089/- is required since the touch damage is not covered under the extended warranty condition. As discussed earlier at the time of picking the phone it was not brought to the notice of PW1 that the phone had pre-existing damage. It was the duty of the 1st opposite party to show the damage at the time of picking the phone. In said circumstances it can be seen that there was deficiency of service from the part of the opposite party so PW1 is entitled for compensation and we are limiting the amount to Rs.5000/-. These points are found accordingly
6. Point No.4:-
In the result complaint is allowed in part.
A) 1st opposite party is directed to repair the phone or in the alternative to refund the purchase price of Rs.13,499/-.
B) Complainant is allowed to realize an amount of Rs.5000/- as compensation for deficiency in service.
C) Complainant is allowed to realize an amount of Rs.2000/- as cost.
The order shall be complied within one month from the date of the receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 18 th day of August, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Aswathi.R(Complainant)
Ext.A1series - E-mail communications
Ext.A2 - amazon in. Tax invoice dtd. 6/7/2017
Ext.A3 - Certificate of Protection
Ext.A4 - Estimation Copy
Evidence of the opposite parties:-
RW1 - Prabheesh Nair(Witness)
Ext.B1 - Photograph
Ext.B2 - Terms of Service of Extended warranty
Ext.B3 - Estimation copy
Ext.B4 - Extended Warranty Plan
Ext.B5 - Certified copy of the Board of Resolution
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
