DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 16^th  day of May 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                 Date of filing:  15/04/2017

              : Sri.V.P.Anantha Narayanan, Member

(C.C.No.62/2017)

Premkumar.M.P,

S/o P.Prabhakaran Kartha,

Pothengil Kovilakam (H),

Nellaya (Post),

Cherpulassery Via,

Palakkad – 679 335.                                                                   -        Complainant

(By party in person)

 V/s

1.  The Manager,                                                               -        Opposite parties

     Reliance Jio Infocomm Ltd (Reliance Corporate IT Park Ltd),

     “Panampallil Arcade”, 2^nd Floor,

      Coimbatore Road,

      Kalmandapam,

      Palakkad – 678 014.

2.  The Manager,

      Reliance Jio Infocomm Ltd

      (Reliance Corporate IT Park Ltd),

      Reliance Corporate Park,

      Building No.4,

      5 TTC Industrial Area,

     Thane Belapur Road,

     Ghansoli, Navi Mumbai – 400 701,

      Maharashtrra State.

     (By Adv.Sheriff)

                                                          O R D E R

By Sri. V.P.Anantha Narayanan, Member

          The case of the complainant is  briefly stated as follows.

          On 04.11.2016 complainant purchased from the 1^st opposite party’s office a mobile phone, namely “New Water8” “having LoliPop” operating system.  According to the complainant, when the mobile phone was switched on, it showed problems, it did not show full charge even if it was charged to the maximum.  The next day, the mobile phone was shown in 1^st opposite party’s office where their service technician changed its software, stating that the problem was that of software.  After two weeks inserting new JIO sim the complainant began using the phone; from then onwards the mobile phone was showing “range problem” and when compared to other mobile phones with JIO sim this mobile phone showed only half range, as pleaded by the complainant and though this problem was intimated to customer care of JIO many times, they did not solve this problem.  In the 1^st week of December 2016 in the complainant’s mobile phone (JIO LYF WATER8) operating system got updated automatically.  Afterwards, the phone could not be used properly and showed the following problems, namely, (1) phone was becoming mute automatically, (2) SD card (memory card) could not be used properly, when the memory was removed from this phone and inserted in another phone it was asked to do “formatting”, (3) files, photos, videos could not be moved to memory card.  According to the complainant, the above mentioned problems occurred because updation happened automatically to operating system of “marshmallow”.  At this time, complainant contacted over phone the customer care office of LYF mobile with this problem and according to the latter only software of the phone will update automatically and its operating system will not update automatically, because that was third party’s application in which complainant has option and if necessary updation can be given.  Complainant again contacted Palakkad service centre of JIO LYF mobile and they again changed the operating system of complainant’s mobile to Lolipop telling the complainant that in his purchased mobile phone option was not asked and a complaint may be made online.  Accordingly, complainant made an online complaint to which he was informed that to solve his problems a team was arranged and some more time may be given to them.  Eventhough 3 months time was given to the opposite party they could not solve his problem and they stated that “this problem could not be solved”, as pleaded by the complainant.  Although, complainant asked the opposite parties to refund the price of the mobile phone, and there by solve his problem it was refused by the opposite party.  Eventhough warning of legal action against the opposite parties was given by the complainant, opposite parties did not mind it.  Complainant further pleads that from the 1^st week of December 2016, in his phone, network could not be used due to which he experienced many difficulties.  Therefore complainant prays to the Hon’ble Forum to direct the opposite parties to refund the price of the mobile phone and to pay him a compensation of Rs.20,000/- towards difficulties experienced and cost of proceedings incurred by the complainant. 

          Complaint was admitted and notices were sent to opposite parties to enter appearance and file their version.  In the version jointly filed by 1^st  & 2^nd opposite parties, they contend that the complaint is not maintainable because, it was based on mere conjectures and surmises and the complainant had failed to produce cogent and coherent evidence to further his averments in his complaint.  These opposite parties also contend that this Forum does not have jurisdiction in this case because the warranty card for the product provides for exclusive jurisdiction of the courts in Mumbai.  They also contend that complainant does not visit 1^st opposite party on the next day of purchase of the product ie on 05.11.2016 and he visited 1^st opposite party for the first time on 27.12.2016 only.  Complainant has failed to provide details of complaint lodged with customer care of the opposite parties.  On 27.12.2016 complainant visited the 1^st opposite party to report the problems of “Apps not move”, SD card in marshmallow version, downgrade lolipop of the product, for which complainant filled and completed customer information slip given by the 1^st opposite party.  1^st opposite party noticed that due to FOTA updation operating system of the product converted from lolipop to marshmallow and to solve the functional issue, the software of the product was upgraded and after that it was demonstrated to the complainant by the 1^st opposite party that the product was functioning normally and the product was returned to the complainant on the same day.  On 29.12.2016, complainant again visited the 1^st opposite party to report the problems of “downgrading lolipop, no move to SD card applications, audio volume low for the product” for which complainant filled and completed customer information slip given by the 1^st opposite party.  The 1^st opposite party created a job sheet with No. (8007530568) of the product.  1^st opposite party did not find any hardware related issue in the product but noticed that software of the product was again updated due to “FOTA” because of which operating system of the product converted from lolipop to marshmallow, and to solve the functional issue, 1^st opposite party updated software of the product and after updating the software that the product was functioning normally and it was also demonstrated by the 1^st opposite party to the complainant and according to the 1^st opposite party, despite the normal functioning of the product, complainant insisted on the replacement of the product.  1^st opposite party also contends that he explained to the complainant that product replacement is subject to the warranty terms and conditions of the product but complainant insisted on the product replacement which was not allowed by the 1^st opposite party and the product was returned to the complainant on the same day.  Opposite parties further submit that complainant’s averments in the complaint are incorrect and should be put to strict proof to prove the “factum” thereof.  1^st & 2^nd opposite parties pray to the Hon’ble Forum that they have provided necessary after sales service to the complainant and there is no deficiency in service on their part and hence, complaint should be dismissed with heavy cost against the complainant.

          Complainant filed affidavit and opposite parties also filed chief and additional affidavits.  From the side of the complainant Exts.A1 & A2 series were marked and on opposite parties side Exts.B1 to B5 were marked.  The disputed mobile phone and its accessories were marked as Ext.MO1 series.  Both parties were also heard.     

            The following issues crop up in this case.

1. Whether the opposite parties committed any deficiency in service and/or unfair trade practice against the complainant ?
2. The relief and remedy available to the complainant?

Issues 1 & 2

Complainant purchased a mobile phone namely “LYF Watrer8” having “Lolipop” operating system from the 1^st opposite party 0n 04.11.2016.  Limited warranty terms and conditions are marked as Ext.A1 which shows the warranty of the product, battery, charger, hands free and USB cable.  The next day, complainant visited the 1^st opposite party’s office and informed them about the problems of the mobile phone and the service technician changed the software telling the complainant that the problem of the mobile was a software problem.  After putting a new JIO sim complainant began to use the mobile and then the mobile showed “range problem”.  This issue was also informed to the customer care of JIO vide Ext.A2 series.  In the 1^st week of December 2016 the operating system inside complainant’s phone updated automatically and the problems occurred to the mobile were: mobile phone automatically switched to mute, unable to use SD card, unable to transfer photos, videos to memory card.  These problems were informed twice to the customer care office of JIO LYF Mobile vide Ext.A2 series.  The opposite party changed the operating system of complainant’s mobile from Marshmallow to Lolipop.  Complainant also lodged an online complaint vide Ext.A2 series as instructed by JIO LYF office at Palakkad.  According to the complainant the opposite parties have not solved the problems of the complainant nor refunded the price of the mobile phone and since December 2016 complainant could not use the network in his mobile and as a result he faced hardships and financial loss.  In their joint version filed by 1^st & 2^nd opposite parties, they contend that, the present complaint is not maintainable because it is based on mere conjectures and surmises and no cogent and coherent evidence is produced by the complainant to further complainant’s averments in the complaint.  Opposite parties also argue that this Forum does not have territorial jurisdiction because the warranty for the product provides for exclusive jurisdiction of the Mumbai Courts.  Copy of warranty card is marked as Ext.B1 which states that all disputes shall be governed under laws of India and are subject to jurisdiction of Courts in Mumbai only.  Also, it is contended that, complainant did not visit 1^st opposite party on 05.11.2016 but visited 1^st opposite party for the first time only on 27.12.2016 to report the problems of Apps not moving SD card in Marshmallow version etc.  Complainant filled and completed customer information slip given by the 1^st opposite party.  Copy of customer information slip dated.27.12.2016 is marked as Ext.B2 which shows job sheet number, customer name, model of the mobile, issue description etc.  According to the 1^st & 2^nd opposite parties after inspection and verification of the product, the 1^st opposite party did not find any hardware related issue in the product but noticed that, due to FOTA updation operating system of the product converted from Lolipop to Marshmallow and to resolve the functional issue.  1^st opposite party updated software of the product and after updating the software, it was also demonstrated by the 1^st opposite party to the complainant that the phone was normally functioning and the same was returned to the complainant on the same day for which complainant signed and acknowledged the job sheet at the time of taking delivery of the product which is illustrated by Ext.B3 which is a copy of job sheet No.”8007499319” which states that “received repaired product in satisfactory working condition, on 27.12.2016”, terms and conditions etc.  Opposite parties also contend that on 29.12.2016 complainant again visited 1^st opposite party to report fresh problems of the mobile for which complainant filled customer information slip given by the 1^st opposite party which is marked as Ext.B4 which indicates job sheet No, date, issue description etc.  After inspection and verification of the product, 1^st opposite party did not find any hardware related issue in the product but noticed that software of the product was again updated due to “FOTA” due to which operating system of the product in question converted from Lolipop to Marshmallow and to resolve the functional issue, updated software of the product and after updating the software the product was functioning normally which was again demonstrated to the complainant and the product was returned to the complainant on 29.12.2016 itself for which complainant signed and acknowledged job sheet No.”8007530568” at the time of taking delivery of the product.  Copy of this job sheet number is marked as Ext.B5 which indicates “received repaired product on 29.12.2016 in satisfactory working condition”, terms and condition etc.  According to the opposite parties, though the product was working normally complainant insisted on product replacement but 1^st opposite party did not accept this demand of the complainant; the change of operating system from Lolipop to Marshmallow is a maker specific and change is effected when the operating system becomes outdated and the existing operating system was updated by Firmware upgradation.  In the Lolipop and Marshmallow through automatic upgradation, the existing functions having different operation and it is the liability of the user of the device to use compatible spares for the smooth functioning of the product and the operating system already changed to Marshmallow cannot be changed back to outdated version of operating system of Lolipop and complaints regarding the signal strength pertains to network coverage and the operating system does not contribute to the same.  According to the opposite parties, complainant has failed to prove any deficiency in service on the part of opposite parties, any technical defect in the product and to establish any loss and injury suffered by the complainant. 

From the affidavits and other documentary evidences produced by both parties before this Forum, we understand that problems have occurred to the disputed mobile phone of the complainant on the very next day of its purchase and even after getting the problems rectified two times by the opposite parties we understand that the software problem of the disputed product could not be solved by the opposite parties.  At the same time from the evidences produced by opposite parties, we also observe that complainant has noted two times receipt of repaired product which is his mobile phone in satisfactory working condition from the opposite parties.  We also observe that although complainant has made an online complaint, opposite parties were seen to have neither provided product replacement to the complainant nor refunded the purchase price of the disputed product to him.  Under these circumstances, we can infer that there has occurred deficiency in service on the part of opposite parties and hence, complaint is partly allowed. 

1^st & 2^nd opposite parties are hereby directed jointly and severally to pay to the complainant Rs.5,000/- (Rupees five thousand only) as compensation towards deficiency in service committed by them and for the resultant mental agony suffered by the complainant; they are also directed jointly and severally to pay Rs.2,000/- (Rupees two thousand only) to the complainant by way of cost of proceedings incurred by him. 

This order shall be complied within one month from the date of receipt of this order; otherwise complainant is also entitled to get interest at 9% p.a on the total amount due to him from the date of this order till realization. 

Pronounced in the open court on this the 16^th day of May 2018.

       Sd/-

                  Shiny.P.R

                   President 

                      Sd/-

                   Suma.K.P

                    Member

        sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 -  Original Limited Warranty Terms and conditions

Ext.A2 series  -  Photocopy of  E Mail Messages

MO 1 series   -  Mobile phone and its accessories

Exhibits marked on the side of Opposite parties

Ext.B1 -  Photocopy of limited warranty terms and conditions of the disputed

             defective product

Ext.B2 -  Photocopy of Customer Information Slip dated.27.12.2016

Ext.B3 -  Photocopy of Job Sheet No.8007499319

Ext.B4 -  Photocopy of Customer Information Slip dated.29.12.2016

Ext.B5 -  Photocopy of Job Sheet No.8007530568

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost

          Rs.2,000/-