BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   19^th DAY OF NOVEMBER 2019

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs jointly and severally to pay Rs.1,180/- which is diagnosis amount taken by OP-2, to pay interest at 18% p.a on Rs.1,180/- from the date of its payment till realization, to pay Rs.2,00,000/- towards dereliction of duty, financial loss etc., to pay Rs.2,00,000/- towards compensation for mental agony, to pay costs of the complaint and such other reliefs.

2.      The brief facts of complaint is as under:

Complainant submits that complainant is using an Apple I Phone 6 with serial No.FFMS2A7NG5MQ.  On 23.09.2017 the OP-1 introduces OS up-gradation to the said phone.  After that the said mobile was not started and got stuck in Apple Logo.  There was no hardware issue prior to this incident.  The complainant gave his mobile for service with OP-2 vide reference No.FIC1384687 on 23.09.2017.  OP-2 diagnosed the problem in the mobile and gave a initial problem statement as ‘While updating software device started to reboot with Apple logo, data not committed, no ICare assure.’

The complainant further submitted that on 25.09.2017 complainant received a mail stating that the mobile cannot be repaired and needs to be replaced in a paid service and as such the complainant has to pay an amount of Rs.27,202/-.  Hence the complainant approached the OP-2 to enquire about the charges levied.  OP-2 informed the complainant to contact the OP-1.  The complainant raised a technical case with OP-1 vide case bearing No.100303159635.  OP-1 informed the complainant to visit OP-2 service centre on 26.09.2017.  The complainant visited the OP-2 shop they have informed the hardware issue.  The complainant objected saying that the device had problem post OS upgrade.  Hence the problem would be related only to software and not to hardware.  Finally the complainant not satisfied with the response, visited the OP-2 service centre again on 07^th October 2017, on enquiry they introduced another totally different problem and was told that there is a issue with the motherboard, hence it cannot be repaired.  Not satisfied with the service response the complainant asked the OP-2 to return his mobile as he was dissatisfied with their service.  OP-2 gave a final report as “Problem reported for Rebooting issue.  Checked and found device is rebooting from apple logo.  Tried to restore the latest IOS but still the same issue.  Hardware issue on iPhone.  Device is out of warranty hence iPhone need to be replaced under paid service to address the reported issue.”

Complainant further submitted that on reaching home, the complainant tried to connect the mobile with system did an simple OS restore, then the device started working normally without any problem, so this clearly shows that the service negligence and an attempt to mislead the complainant to pay Rs.27,202/- for a smooth functioning mobile.  This shows that OPs.1 & 2 committed deficiency of service and indulged themselves in unfair trade practice.  The mobile phone was with the OP-2 from 23.09.2017 to 07.10.2017.  Complainant’s father passed away on 19^th August 2017 during this time the complainant could not have access to his mobile as all his contacts was stored in the mobile.  That on account of aforesaid dereliction of duty, negligence, suppression of material facts that the mobile needs simple OS restore and the fact that the OP-2 has taken Rs.1,180/- to diagnose the fault in the mobile and further they quoted an amount of Rs.27,202/- which amounts to deficiency of service.  Hence complainant filed this complainant seeking appropriate reliefs.     

 3. In response to the notice issued, OP-1 appeared through their advocate and filed their version in brief as under:

The complaint filed by the complainant is malafide, devoid of merit and contradicts established principles of law.  The instant complaint has been devised to mislead this Forum.  That it is a common market principle and also an established position of law that consumers who wilfully destroy, damage or negligently handle a product are not eligible to claim any relief under the C.P Act.  When consumers cause damage to products by external factors which are not associated with the manufacturing/inherent condition of the product and such which acts are in complete disregard to and in breach of the warranty policies of manufacturers cannot claim relief under the C.P Act, 1986.  The provisions and terms of the Apple warranty specifically exclude damaged products which is the case in the present matter.  The complainant is abide by the terms and conditions of the warranty.  As per the warranty the iPhone will be rendered out of warranty if it is damaged.  In the present case the complainant has used the iPhone negligently and damaged it, hence it cannot be serviced/replaced under warranty.

OP-1 further submits that the complainant did IOS update to his iPhone 6 bearing serial No.FFMS2A7NG5MQ on 23.09.2017 and the device started to show some issues stuck on Apple Logo, for which the complainant approached the OP-2 who is the authorized service provider and got inspected the said iPhone on 23.09.2017 with reference No.FIC1384687.  OP-2 diagnosed the iPhone and gave initial problem statement as ‘While updating software device started to reboot with Apple logo, data not committed, no iCare assure.’  OP-2 sent email with notification that the device is out of warranty as the AASP gives one year limited warranty and so the complainant was offered the paid service to which the complainant denied, though the authorized service center took serious note on the complaint and worked out positively to resolve the issues of the device.  However the complainant denied for the further service and collected back the device.

OP-1 further submitted that the complainant again approached OP-2 on 07.10.2017 for different issue, he was advised that there is an issue, the complainant was not cooperating with the service center he was impatient to get his device back, by that time the device was diagnosed by OP-2 again and successfully resolved the issue and also updated IOS, the issue was resolved and the device was returned back in working condition.  Although it was out of warranty, for which the complainant mailed AASP stating that the device is working fine.  The complainant is making stories to suit his case with an intention to gain unlawful profit.  The complainant been well aware of the fact is trying make vague claims for his unjustified complaint since the issue was resolved, iPhone is working in good condition.  Hence OP-1 prayed to dismiss the complaint.

4. Despite service of notice, OP-2 remained absent.  Hence OP-2 placed ex-parte.

5. In the course of enquiry into the complaint, the complainant and the OP-1 have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OP-1 have produced certain documents which were marked.  Complainant and OP-1 have submitted their written arguments.  We have heard the arguments of complainant and OP-1 and we have gone through the oral and documentary evidence of parties scrupulously and posted the case for order.

6. Based on the above materials, the following points arise for our consideration;  

1. Whether the Complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he is entitled for the relief sought for?

2.  What order?

7. Our findings on the above points are as under:

Point No.1:  In the Negative

Point No.2:  As per the order below

REASONS

8. Point No.1 Admittedly the complainant is having iPhone 6 bearing serial No.FFMS2A7NG5MQ.  Complainant contended that due to OS upgrade in September 23, 2017 his mobile was not started.  Then the complainant approached OP-2 on 23.09.2017.  OP-2 diagnosed the problem.  Then the OPs have sent a estimation of Rs.27,000/- through mail.

9. To substantiate this contention the complainant has produced job card dated 23.09.2017 and estimation dated 25.09.2017.  On perusal of the job card/Ex-A2 it clearly mentioned that the problem reported ‘While updating software Device started to reboot with Apple logo, date not committed, no Icare assure.’  Further on perusal of the invoice/quotation dated 25.09.2017/Ex-A1 in diagnostic details it mentioned as:

Checked and found device is rebooting from apple logo.  Tried to restore the latest IOS but still same.  As device voids warranty, device needs to be replace under paid service.

Further in the price column quoted a repair cost of Rs.27,202/-.  The said document and also pleadings were not disputed by the OPs.  Hence, it is proper to accept the contention of the complainant. 

10. Further the complainant submits that he is not satisfied with the e-mail sent by OPs dated 25.09.2017.  Hence complainant contacted OP-1.  The OP-1 informed the complainant that there is an hardware problem and complainant has to pay estimated price.  The complainant has not satisfied with the words of OP-1, again visited OP-2 service centre.  OP-2 informed the complainant that there is totally different problem that there is a mother board problem.  Not satisfied with the service of the OPs, complainant asked the OPs to return the handset.  OP-2 returned the handset on 07.10.2017.  The main allegation of the complainant is that after he has received the mobile handset from OP-2, the complainant tried to connect the mobile with system and did an simple OS restore then the device started working normally without any problem, so this clearly shows that the service negligence and an attempt to mislead the complainant to pay Rs.27,202/- for a smoothly functioning mobile.  This shows that the OPs.1 & 2 committed deficiency in service.

11. On the other hand OP-1 submitted that OP-2 sent email with notification that device is out of warranty as the AASP gives one year limited warranty and so the complainant was offered the paid service to which the complainant denied.  The authorized service center/OP-2 took a serious note on the complaint and worked out positively to resolve the issues of the device.  The complainant denied for further service and collected back the device.  OP-1 further submits that on 07.10.2017 the complainant again approached OP-2 for different issues.  The OP-2 successfully resolved the issue and also upgraded IOS.  The issue was resolved and device returned back in working condition.

12. On perusal of the Ex-A4 the OPs have sent mail to the complainant which reads here as under:

Your device is ready for delivery.  Please pick it up at Imagine store, Forum Mall at your convenience, anytime between 10:30 AM – 7:00 PM.

Details of the repair are attached below for your reference.

As could be seen from the mail/Ex-A4 it is seen that the phone was ready for delivery.  The OP-2 has mailed to the complainant after rectifying the defect.  The complainant has received the phone in a proper condition and thereafter approached this Forum for deficiency of service which is unacceptable. 

 13. In view of the above discussions the complainant has failed to prove deficiency of service on the part of OPs as alleged in the complaint.  The material placed on record by the complainant is not sufficient to come to the conclusion that there is any deficiency of service on the part of OPs.  Therefore, the complaint is liable to be dismissed.  Accordingly, we answered the point No.1 in the negative. 

14. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the Complainant is dismissed.  No order as to costs.

 Supply free copy of this order to both the parties.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 19^th day of November 2019)

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Venkatakrishnan Duraiswamy.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OP-1 by way of affidavit:

Sri.Priyesh Poovanna, who being the authorized signatory of OP-3.

Documents produced on behalf of Opposite Party-1

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

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