BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.494/2019

DATED ON THIS THE 28^th September 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri B.NARAYANAPPA,

PRESIDENT

1.       The complainant Sri M.C.Surendra, resident of Mysuru has filed this complaint against the OP No.1 – Oppo Service Centre, Mysuru and OP No.2 – Pai Mobile, Mysuru, praying to direct the OPs to pay the value of the mobile and expenditure incurred by him for travelling from his home to office Rs.15,000/- and Rs.30,000/- towards mental agony caused to him and such other reliefs as this Hon’ble Commission deems fit to grant in the circumstances of the case..     
2.       The brief facts are that:-

On 19.05.2019 the complainant had purchased Oppo F11-Pro mobile from OP No.2 by paying Rs.24,800/-.After usage of the same for 5 months he made updates but the mobile handset was not switched on.In spite of it, it was power on, it was showing Oppo powered by Android, when he shown the same to OP No.1 service center, they told him that mobile set has been rooted, he explained everything to OP No.1 service centre and hand over the handset after one week, he met the OP No.1 they told him that the service will not be done immediately.Then he asked them to repair the handset since it is in the warrant period.The OP No.1 told him that as a separate software was installed, therefore such mistake has occurred and the OP No.1 told that no resolution is there with them and they intimated the same to OP No.2 and by giving phone number 9590303695 asked the complainant to contact the said mobile number for servicing, they told him saying that they will explain the things later.After 3 days, he visited OP No.1 they told him to pay Rs.13,000/- since mother board has to be replaced otherwise they cannot repair it.Therefore, he sent a notice to OP No.2 explaining the defects in the mobile handset, they told him that they will inform the same to their higher authority and they gave evasive answer and again told him to pay Rs.13,000/- towards cost of the repair.On 29.10.2019 he visited the OP No.1 and also again on 30.10.2019 he visited the OP No.1 and requested to replace the mobile handset, they told him that the mobile has been rooted unless payment is made service cannot be done.Therefore, it is alleged deficiency in service on the part of OPs.Hence, this complaint is filed.

3.       After institution of this complaint, notice was ordered to be issued to OPs.  In response to notice, OPs appeared before this Commission and OP No.1 has filed version contending that the complaint is not maintainable both in point of law and as well as on facts and there is no deficiency in service caused by the OPs and the complaint is bad for non-joinder of necessary party i.e. manufacturer of the mobile phone.  On this ground only, the complaint is deserved to be dismissed and admitted that the complainant had purchased Oppo F11-Pro mobile from OP No.2 on 19.05.2019 and also admitted that the OP No.1 repaired the mobile handset and told the complainant that mobile handset is rooted and further contended that the complainant has unofficially updated the software of his mobile phone as mentioned above using external software, which is not compatible for the said device.  Thus, the said mobile phone of the complainant indicates the warning as “Rooted” when it is restarted.  The complainant is well aware that he can only update the mobile phone when the Oppo company releases its official software periodically.  But, the complainant has willfully updated his mobile phone by rooting the same, thereby warranty has become void and warranty of the said mobile has become unenforceable in law.  The rooting is a process that allows the users to access to the Android operating system code (Similar to jail breaking) and thereby it gives the users the privileges to modify the software code on the device or install other software that the manufacturer would not normally allow the user to do so.  The complainant has used the mobile in appropriated manner and attempted to update the same using unofficial and third party applications by external methods and due to this process, the main mother board of the device is damaged.  Therefore, warranty of the mobile phone has become void.  However, OPs are ready to repair the mobile phone, if the complainant pays a sum of Rs.12,167/-. For all these reasons, prays to dismiss the complaint.           
4.        The complainant has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and got marked Ex.P.1 to Ex.P.4.     On the other hand, OP No.1 has filed its affidavit on behalf of OPs by way of examination in chief the same was taken as R.W.1.  
5.     The complainant has filed his written arguments.  OPs and their counsel were not present and not addressed arguments in spite of giving sufficient opportunities. 
6.        The points that would arise for our consideration are as under

1. Whether the complainant proves that the alleged deficiency in service on the part of the opposite parties and thereby he is entitled to the reliefs as sought for?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

      Point No.1 :- Partly in the affirmative.

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.          Point No.1:- It is not in dispute that the complainant has purchased Oppo F11-Pro mobile on 19.05.2019 from OP No.2 by paying Rs.24,800/-, this fact has been admitted by OPs in their version and it is also not in dispute that the complainant after usage of the said mobile handset after 5 months updated it and installed the software and the mobile screen displayed as Oppo powered by Android.  The OPs in the version have also stated that the complainant rooted the mobile handset and installed other software which is violation of the terms and conditions of the warranty.  Therefore, the OPs contend that the warranty extended to mobile handset of complainant is void and same cannot be repaired under warranty. It is the specific contention of the complainant that within the warranty period his mobile handset is switched off after 5 months of usage and when it was switched on, it displayed Oppo powered by Android.  Therefore, he asked the OPs to set right the display problem, but they told that the complainant installed other software using external software which is not compatible for the device of the complainant.  Therefore, a problem arose in the mother board.  In view of the complainant himself installed other software using external software, the mobile handset of the complainant shows warning as rooted which is in violation of the terms and conditions of warranty extended to mobile handset and problem arose in the mother board.  Therefore, mother board has to be replaced on payment of cost of Rs.12,167/-.  But, it is the contention of the complainant that during the warranty period, mother board problem arose and the OPs failed to rectify the same and demanded Rs.13,000/- from the complainant to change the mother board.  But, the complainant refused to pay the said amount stating that within the warranty period, such problem arose.  Therefore, he contends that it is the duty of the OPs to rectify the problem.  Whereas it is the specific contention of the OPs that the complainant himself unofficially updated the software of his mobile phone by using external software.  Therefore, the mobile hand set of the complainant shown as rooted, it is violation of the terms and conditions of the warranty.  Therefore, the handset of the complainant cannot repaired with free of costs unless payment of Rs.12,167/- is paid by the complainant.  The complainant got marked Ex.P.1 GST invoice which shows that the complainant by paying Rs.24,800/- purchased mobile handset from OP No.2 on 19.05.2019 and this fact also been admitted by the OP No.1 in the version.  Therefore, the purchase of mobile handset in question by the complainant from OP No.2 is stands established.  Ex.P.2 is the customer job card.  The terms and conditions reads thus:- “The service centre shall not be oblized to undertake the repair of products, found waterlogged, liquid damaged, tampered or as a result of repair carried out by unauthorized repairers. If during the warranty period the customer has got the product repaired through any unauthorized service centre/person, the warranty of the product shall be declared as void and the service centre will not be liable for any memory loss, setting or data losses during the repair.”  So from Ex.P.2 it is crystal clear that during the warranty period, if the complainant carried out repair by unauthorized repairer through unauthorized service centre, warranty shall be declared as void.  In the present case on hand, as admitted by the complainant himself, he installed a separate software by using external software unofficially, therefore, the display shown warning as rooted.  Under such circumstances, as per the terms and conditions incorporated in Ex.P.2, the warranty shall be declared as void.  Ex.P.3 is the letter written by the complainant to OPs. The OPs also produced terms and conditions of warranty which reads thus: “defects caused due to usage of third party /non-Oppo authorized consumables.  Faults caused by the internet and wireless information service provides (operation) are not covered under the warranty”. So it appears that the complainant by installing unauthorized software in his mobile handset by using external software unofficially updated the software.  Therefore, the display of the mobile handset indicates warning as rooted and problem was arose in the mother board.  Therefore, it is a clear violation of the terms and conditions of the warranty.  Any how, such problem arose during the validity of the warranty period. Under such circumstances, the OPs should not have flatly refused to set right the problem, but the OPs refused to rectify the mobile handset display or mother board by stating that the complainant installed separate software by using external software which is violation of the terms and conditions of the warranty.  Therefore, declined to repair/replace mother board and demanded the complainant to pay Rs.12,167/- towards repair charges for replacing mother board.  The OPs in the version has also clearly stated that even now OPs are ready to repair the mobile phone of the complainant under out of the warranty by replacing the mother board for which the complainant shall have to pay sum of Rs.12,167/- which appears that it is not fair on the part of OPs.  Instead of declining the repair of the handset of the complainant, the OPs should have shown some leniency by demanding 50% of the amount out of Rs.12,167/- and could have repaired the mobile handset of the complainant.  But, the OPs flatly refused to replace the mother board of the complainant which is nothing but deficiency in service and unfair trade practice on the part of OPs. Therefore, we are of the considered view that the OPs are liable to replace the mother board by receiving 50% of the amount out of Rs.12,167/- as demanded by OPs from the complainant and to repair the mobile handset of the complainant by replacing the mother board of the same. Hence, we answer point No.1 partly in the affirmative.
9.       Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby allowed in part.
2. The opposite parties are hereby directed to replace the mother board of the complainant by receiving 50% of the cost out of Rs.12,167/- as demanded by the OPs from the complainant within 2 months from the date of this order. The complainant shall pay the 50% of the cost out of Rs.12,167/- as demanded by OPs and to get his mobile handset repaired by replacing the mother board.
3. Further, opposite parties are hereby directed to pay compensation of Rs.3,000/- towards mental agony and deficiency in service caused to complainant and Rs.2,000/- towards cost of the litigation within 2 months from the date of this order, failing which compensation of Rs.3,000/- + cost of litigation of Rs.2,000/- = 5,000/- shall carry interest at 10% p.a till payment.
4. The complainant is at liberty to take action against the opposite party under Section 72 of the C.P.Act, 2019 for non-compliance of this order.
5. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 28^th September, 2022)