CC No.306.2017

Filed on 28.02.2017

Disposed on 28.02.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE 28^th DAY OF FEBRUARY 2019

CONSUMER COMPLAINT NO.306/2017                                                                                                                                                                                                                                

PRESENT:

 Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

         PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                       MEMBER

                                            V/S

ORDER

BY SMT. L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainant on 28.02.2017 under Section-12 of the Consumer Protection Act, 1986 praying to pass an order directing the Opposite Party to refund the cost of mobile and direct the Opposite Party to pay compensation of Rs.2,00,000/- OR if Opposite Party is not willing to refund cost of mobile and compensation should be directed to provide replacement with new phone along with additional compensation and not to handover refurbished/repaired phone to Complainant when he was paid for new phone and also requesting Hon’ble Court to instruct Motorola to provide appropriate and adequate communication channels for customers which are transparent, reliable and timely.    

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he had purchased the mobile phone Model Moto Z Play (IMEI-358960060465476) from Amazon vide order number 403-6045432-2824352.  But Opposite Party delivered the product in faulty condition.  The Complainant purchased Moto Z Play, which arrived in couple of days.  He started using the phone, everything looked fine.  During the bootup, there was a message saying “ID validation failed” which showed for 5 seconds and could be easily missed because phone booted up automatically after that.  He tested phone call, camera, wifi, Bluetooth, some apps and whatever he could to feel comfortable with the phone.  All was fine till5th day, when phone automatically rebooted once.   The Complainant travel out for next 3-4 days for work and again he noticed same issue once of reboot.  After coming back he had to find time to go to Motorola service center to get it checked on reboot issue as service center was completely out of his way to office.  Again, the phone was working well so nothing worrying about it.  He had assumed they would ask to reset as they would generally do for various issues on moto phones.  As he installed more apps, he would start getting messages like “Unfortunately <app> has stopped” consistently.  He managed to go to Service center on 14^th day after his phone was delivered.  After inspecting his phone, he was informed that “bootloader” of this phone has been unlocked and now it is not in warranty.  Without having the clue of what the bootloader is and how to unlock this, he was informed he has tampered with phone’s software and phone cannot be repaired.  When he told he has not done any of that sort and does not know how to do it, they pointed to that warning message which indicated the phone has been tampered with and he should ask Amazon for replacement.  He called Amazon and they politely excused with their 10 day return policy.  He went back to Motorola service center and he was ping-ponged between their customer support and service center.  When he insisted them to prove he has tampered the software after it was delivered to him and having so many arguments and calling up almost every day for next 5-6 days, they agreed to escalate this issue to their level 2 support.  They asked him to try various things like update apps, factory reset, remove google account, etc and it still did not fix the problem.  Customer support validated and confirmed the bootloader has not been unlocked and Complainant can claim warranty after so many hassles.  He was asked again to go to service center for repair.  He went to service center next day and they told they will keep the phone for a day to investigate and inform him of status.  It’s been 60 days since then and they have not been able to identify the cause of the problem.  The response he got is that they don’t have tools to debug this phone and so can’t commit on when they can find the reason for problem, forget about fixing it.  Motorola has not given any assurance on refund/replacement for the phone and instead trying to give Complainant a refurbished phone, that too without any quality of service and clear plan.  They just kept extending delivery dates without any reasonable communication and explanation. 

3. So having spent Rs.25,000/- for this product, using phone only for 20 days out of 3 months since Complainant purchased this phone.  After having gone through such suffering, Complainant approached consumerhelpine.gov.in and lodged a complaint vide number 119744 dt.05.01.2017, who advised the Complainant to send notice to Opposite Party to their registered office through Registered RPAD.  The same was sent to Opposite Party on 27.01.2017.  For that Opposite Party called the Complainant and to inform they would replace the motherboard.  Opposite Party however failed to provide any clarification on problem, commitment on compensation for loss of 3 months of warranty period of new product and reasonable justification on non-replacement of a product which was delivered in faulty condition to start with.    Hence this complaint.

4. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version. In the version pleaded that the complaint is not maintainable either under law or on facts.   It is submitted that from the data base of the records of the Opposite Party, only one complaint call was logged for the Smart phone in question for the issue of Power On/Off and the engineer of the Authorized Service Provider of the Opposite Party has duly looked into the same and has arranged to replace the required part, PCB to Smart phone of the Complainant to make good in working condition under the warranty; closed the complaint call on 7^th February, 2017 and informed the Complainant to take delivery of the same.  However, the Complainant has not taken delivery of his repaired handset inspite of repeated reminders by the representative of the Opposite Party.  Therefore, there is no deficiency in services and the Opposite Party cannot be liable for the wrong doings/lack of cooperation on the part of the Complainant.

5. That it is a matter of record that the Complainant has purchased a Motorola Smart Phone Model Moto Z Play which has a warranty of one year from the date of purchase.  However, the complaint is put to strict proof of the same.  As per the data base of the Opposite Party, only one complaint call was logged on 14^th December, 2016 for the Smart phone in question for the issue of Power On/Off and the Engineer of the Authorized Service Provider of the Opposite Party has duly looked into the same vide SR#SRB2X0501612140015 and found that the part, PCB requires to be replaced.  However, the same was not readily available and hence informed the Complainant that they would be servicing it upon receipt of the required part for which the Complainant has accepted and deposited the handset with the Authorized Service Provider.
6. Further the Authorized Service Provider has arranged to obtain the required part, PCB to Smart phone of the Complainant and replaced the same with IMEI 358960060234559 to make good the Smart Phone in working condition under warranty; closed the compliant call on 7^th February, 2017 and informed the Complainant to take delivery of the same.  That the Opposite Party’s are at all times willing to repair the Smart Phone under the warranty policy and there is no time-line prescribed for situations when parts has to be ordered, as such there is no deficiency or unfair trade practice on part of the Opposite Parties and the complaint ought to be dismissed. 
7. Further it is to be noted that the Authorized Service Provider has procured the required parts by ordering the same from the warehouse of the Opposite Party.  Upon receipt of the required part, the same was duly replaced to make the Smart phone working fine and the same was intimated to the Complainant over phone on regular intervals and requested him to take delivery of his Smart Phone.  However, the Complainant has denied collecting/taking delivery of his Smart phone which was kept in good working condition.  In consequence the Authorized Service Provider of the Opposite Party was not able to deliver the Smart Phone to the Complainant in spite of repeated reminder requesting the Complainant to collect his Smart phone from them and the efforts made by them went in futile.  Thus, there is no deficiency in service on the part of the Opposite Party.  Further note that the Smart phone of the Complainant was repaired and kept in good working condition.  Therefore the Smartphone in question is not defective or has manufacturing defect which warranted refund/replacement.  Further it is submitted that the Complainant has impliedly accepted to the terms and conditions at the time of purchase of the Smart Phone Moto Z Play and it is submitted that the rights and liability of Opposite Party are limited to the extent of terms and condition of the Warranty and the Complainant is fully aware of the warranty policy.  Therefore offered to provide the required services under warranty and have repaired the Smart phone of the Complainant in good working condition.  Therefore, the Complainant is not entitled to any equity or relief from Motorola except taking resort to warranty terms.  Consequently there is no deficiency in service/unfair trade practice and there is no question of mental agony to the Complainant.
8. Despite this conduct of the Complainant, as soon as Complainant had filed the complaint, without prejudice, the Opposite Party as a goodwill gesture of support and in furtherance of its consumer friendly approach, offered to provide the extension of Warranty by three months to the Smart Phone.  However, the Complainant has denied availing the above bonafide offer of the Opposite Party which demonstrates that the present complaint is filed with the sole intention of harassing the Opposite Parties.  No expert report regarding the defect in the subject Smart Phone has been filed by the Complainant in support of this allegation which is mandatory requirement under the law and without filing the report of neutral expert regarding the alleged defect the present complaint is not maintainable.   Hence prays to dismiss of this complaint.

9. The Complainant Sri.Chandan Chopra filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, except interested version of Sri.Prem Prakash, Authorized Representative of Opposite Party, they are failed file their evidence.    Heard arguments of Complainant.

10.     The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled ?

11.     Our findings on the above points are:-

                   POINT (1):- Affirmative

                   POINT (2):- As per the final Order

REASONS

12.     POINT NO.1:-   As looking into the averments of the Complainant and also the version filed by the Opposite Party, it is not in dispute that the Complainant purchased the mobile phone of Opposite Party Company through Amazon on 15.11.2016 mobile phone Model Moto Z Play (IMEI-358960060465476) vide order number 403-6045432-2824352 by paying Rs.25,000/-.  But Opposite Party delivered the product in faulty condition.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the copy of Invoice, copy of Job Sheet, copy of notice, copy of Emails.  By looking into these documents, it clearly shows that the Complainant purchased Moto Z Play mobile from Opposite Party.  But it is in faulty condition.  The evidence of Complainant is not been disputed or challenged by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that there is deficiency of service on the part of the Opposite Party.

13.   The defence of the Opposite Party is that the Complainant is not maintainable either in law or on facts.  From data base of the records of the Opposite Party, only one complaint call was logged for the Smart phone in question for the issue of Power On/Off and the Engineer of the Authorized Service Provider of the Opposite Party has duly looked into the same and has arranged to replace the required part, PCB to Smart phone of the Complainant to make good in working condition under the warranty; closed the compliant call on 7^th February, 2017 and informed the Complainant to take delivery of the same.  However the Complainant has not taken delivery of the same, inspite of repeated reminders by Opposite Party.  Therefore, there is no deficiency in service on the part of Opposite Party.  In support of this defence, Sri.Prem Prakash, Authorized Representative of Opposite Party filed his version and he has reiterated the same.  Except the interested version of Sri.Prem Prakash, the Opposite Party have not produced any evidence in support of their defence.  The Complainant had refused to take delivery of mobile.  In that event, the Opposite Party ought to have produced relevant documents to substantiate their defence, but they failed to produce the same. 

14.   With this it is very clear that there is deficiency of service on the part of the Opposite Party.  It is the duty of the Opposite Party to either refund or replace the mobile, if mobile is in faulty condition, at the time of purchase.  Though Complainant requested several times, Opposite Party failed to rectify the defects.  Due to this, the Complainant suffered mental agony and financial loss. Thereby, the Complainant is entitled for compensation.  Hence, this point is held in affirmative.

15. POINT No.2:- In view of the finding on point No.1, we proceed to pass the following:

ORDER

The Complaint is allowed holding that there is deficiency of service on the part of the Opposite Party.

The Opposite Party is directed to refund a sum of Rs.25,000/- to the Complainant. 

The Opposite Party is directed to pay a sum of Rs.5,000/- as compensation to the Complainant.

The Opposite Party is further directed to pay a sum of Rs.3,000/- as cost of this litigation to the Complainant. 

The Opposite Party is granted 45 days’ time from the date of this order.  

Supply free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 28^th day of February 2019)

MEMBER                                                                       PRESIDENT      

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Sri.Chandan Chopra, who being Complainant has filed his affidavit.

List of documents filed by the Advocate for Complainant:

1. Amazon product Invoice copy. 
2. Motorola Service Canter Job Sheet copy.
3. Incident Logs for Motorola customer Support incident numbers 161219-012756, 161207-019631, 161208-020568.
4. Copy of Notice sent to Motorola/Lenovo by Registered Post and official Email.
5. Copy of tremendous consumer sentiment in response to Complainant’s online feedback.
6. Hard copies of communication proofs with Motorola support denying access to postal communication address and enforcing communication one-sided from their end.

Witness examined on behalf of the Opposite Party:

1. Sri. Prem Prakash, Authorized Representative of                             Opposite Party by way of affidavit

List of documents filed by the Opposite Party:

1. Copy of the Resolution.

MEMBER                                                             PRESIDENT