Tamil Nadu

South Chennai

CC/115/2015

R.Karthikeyan - Complainant(s)

Versus

M/s.Apple India Pvt Ltd., - Opp.Party(s)

M/s.S.Udayakumar

12 Aug 2022

ORDER

                                                      Date of Complaint Filed :11.02.2015

                                                      Date of Reservation      :13.07.2022

                                                      Date of Order               :12.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 115/2015

FRIDAY, THE 12^th DAY OF AUGUST 2022

R.Karthikeyan,

S/o. P.S. Ramamoorthy,

No.44/2/2, Chakarapani Street Extension,

West Mambalam,

Chennai – 600 033.                                                       ... Complainant         

 

..Vs..

1.Apple India Private Limited,

   Rep. by Managing Director,

   19^thFloor,Concorde Tower C,

   UB City, No.24, Vittal Mallya Road,

   Bangalore-560 001.

   India.

 

2.M/s. Ample Technologies Pvt Ltd,

   Rep. by Technical Head,

   Ampa Sky Walk Shop No.101A, 1^st Floor,

   No.1, Nelson Manickam Road,

   Aminjikarai,

   Chennai – 600 029.

 

3.M/s. Ample Technologies Pvt Ltd,

   Rep. by Authorised Person,

   Mr.Partha,

   No.31^st Street, Sivagamipuram,

   Thiruvanmiyur,

   Chennai – 600 041.                                              ...  Opposite Parties

 

******

Counsel for the Complainant                    : M/s. S.Udayakumar

Counsel for the 1^st Opposite Party            : Exparte

Counsel for the 2^nd & 3^rdOpposite Parties  : Rajesh Ramanathan

 

        On perusal of records and on endorsement made to treat the written arguments as oral arguments by the Counsel for the Complainant and on hearing the oral arguments of the Counsel for the 2^nd and 3^rd Opposite Parties, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A.,B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to to pay a sum of Rs.50,000/- towards value of handset (I Phone 5) and direct the Opposite Parties to pay a sum of Rs.25,000/- towards mental agony along with cost of Rs.5,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainant had purchased iphone-5 and the said iphone-5 was not functioning well and hence it was given to the 2^nd Opposite Party to rectify the handset.  It was rectified and returned back to the Complainant and as the handset was not working properly again, was handed over to the 2^nd Opposite Party and after minor rectification returned back. The handset was again handed over for further rectification and the 2^nd Opposite Party after receipt of the handset after few days has stated that the display is not original. After hearing such complaint, it was informed orally thatthere was no such complaints from the Opposite Parties when handed over before for rectification, but when the Opposite Parties are unable to rectify the manufacturing defect in the handset had conveniently informed him that the display is not original, whenthe handset was not handed over to any other service centre except the Opposite Parties. The Opposite Parties are duty bound to inform any major manufacturing defect immediately to the customer like Complainant. Within the guarantee period the hand set was handed over for service and it is unfortunate that the Opposite Parties simply shift the blame on him as if he had changed the display in original. The Opposite Parties are deliberately kept hand set for several months and hence the Complainant had sent a detailed letter on 17.11.2014 since there was no response, the Complainant's counsel had sent notice on 20.11.2014, in spite of receipt by all the parties neither rectified the manufacturing defect in the handset nor replied and also not returned the handset till date. They are duty bound to replace the handset with new one. They are bound to rectify the problem in the handset and without the handset, he is unable to do his business. Inaction on the part of the Opposite Parties amounts to unfair trade practice since the Apple Corporation is very reputed company worldwide but service centers in Chennai are handling the handset in a bad manner. It is the duty of the Opposite Parties to satisfy the customer need and the business based upon the customer satisfaction. The Complainant had paid the amount for extended warranty via net banking on 04.06.2014 and the warranty is valid up to 23.06.2015. The service report dated 26.01.2014 has not disclosed anything about the display, Similarly the second service report dated 17.03.2014 has also not disclosed the alleged defect. Likewise the third service report also not disclosed the alleged display defect. As the problem reported was right and top side of the home button is not responding, in the first service report the condition of equipment was noted as 'minor dense found all over the phone / usage scratches', in the second service report the condition of the equipment was noted as deep scratches and chip off on whole unit and in the third service report right and top side of the home button is not responding. About the change in display was never informed either at the first instance or second instance and therefore the alleged complaint invented purposely is not countenanced. Therefore the Opposite Parties are duty bound to either rectify the handset bearing Serial No.F2MKLJUDTWD. Hence the complaint.

3. Written Version filed by the 2^nd and 3^rdOpposite Party in brief is as follows:-

The 3^rd Opposite Party is an unnecessary party to the proceedings as the complainant at no point of time, has ever come in contact with the 3^rd Opposite Party with regard to impugned transaction or otherwise. The Complainant had purchased the I-Phone 5^th Generation manufactured by the first Opposite Party in the month of June 2013 from the 1^st Opposite Party. The purchase of the above said phone entitled him to one year warranty along with the option of extending the said warranty by one additional year. The said offer for extension of warranty was availed by the Complainant thereof, and accordingly his warranty period stood to expire on 23rd June 2015. They are the designated and authorized service providers for the 1^st Opposite Party. They are the branch offices of Ample Technologies Private Limited, Bangalore, a company incorporated under the Indian Companies Act, which provides for wide ranging services like retail services, postsale services and technology solutions. The Complainant had contacted the 2nd Opposite Party for the first time on 26.01.2014 with a complaint regarding a dysfunctional home-button in his I-phone. As per the scheme of service of any apple gadget involves them determining if the defect is an internal (hardware) one or an external (software and external features such as buttons etc) one. In case the Apple gadgets suffers from an external defect, a simple resetting of the operating system or replacement of external features would rectify it, and that is generally the first course of defect resolution adopted by them. In case, the problem is not eliminated inspite of resetting the operating system; the gadget is thereafter opened to look for the source of the issue so as to resolve the same. At the first instance of processing any repair, they carry out a preliminary VISUAL MECHANICAL INSPECTION (VMI) to check the internal condition to determine whether the unit is eligible for repair or replacement. The Complainant had contacted the 2^nd Opposite Party with a grievance regarding his Iphone, the 2^nd Opposite Party had detected that the home button, an external feature, was depressed and working intermittently. The 2^nd  Opposite Party had carried out the VMI at the processing the repair and effectively performed a "part level service" by duly replaced the home button thereby successfully resolved all defects complained in the IPHONE returned the repaired IPHONE to the IPHONE's functionality. On receipt, he had the liberty of checking for IPHONE's functionality and in the service feedback furnished by him to the 2^nd Opposite Party, he had quoted his experience with service as “Very Satisfied". For the second time on 17.03.2014, he had contacted the 2^nd Opposite Party with minor issues in the call taking ability of the IPHONE, which the 2^nd  Opposite Party detected as the proximity sensor issue which hampered with the call receiving functionality of the phone, as the same is an external feature and therefore the 2^nd Opposite Party had no need to open the phone to look into its internal features andhence had duly replaced the proximity sensors and rectified all the other minor defects as claimed by the Complainant before returning the instrument to him,and in his service feedback once again had quoted that he was "very satisfied". At no point of time did he voice his alleged dissatisfaction over the service or the Iphone at such a point of time. The Complainant thereafter on 03.11.2014, had contacted the 2^nd Opposite Party for the third time citing that the home button in the Iphone was once again dysfunctional. It was then noticed by the 2^nd Opposite Party at the time of the third service that the Iphone had dents on all corners and looked worse for wear. Regardless, the 2^nd Opposite Parties looked into the Iphone for the defects and had tried to resolve the same, in that particular instance, the 2^nd Opposite Parties could not resolve the issue externally and therefore had to look into the internal features for rectification. On doing so, the 2^nd Opposite Party had found that a couple of screws were missing from the visual cowling plate which is generally indicative of the fact that the gadget had been opened up earlier. On inspecting further, it was discovered that in addition to the missing couple of screws in the display cowling plate, a third party display was also installed, which indicates that hisIphonewas opened by a third party.In the previous two instances, when the 2^nd Opposite Party had rendered their services to the Complainant, at the time of VMI, did not find any such 3^rd party installations and/or interference on the IPHONE and had therefore processed it for repairs. Therefore, the Complainant had made such a third party display installation in the duration between the completion of the second service i.e, 12.03.2014 and when the Complainant had approached the 2^ndOpposite Party for a third service i.e, 03.11.2014. When an Apple gadget is under a warranty, and it is eligible for free service by the 2^ndand 3^rd Opposite Parties or any other authorised service provider of the 1^stOpposite Party, till the expiration ofsuch a warranty. Further, as per the terms and conditions of the warranty availed by the Complainant, display screen defects/replacement and other accidental damages are not unconditionally covered under the same. However, during the tenure of such a warranty, if it is found that the gadget has been unauthorizedly hampered with by any third party interferences, its hardware/software (JAIL BREAK) including installation of third party features, the gadget will automatically become ineligible for service from any authorized service provider of the 1^st Opposite Party as per the terms and conditions of the warranty. The said fact was immediately brought to the attention of the 1^st Opposite Party and the Complainant. The Complainant aggressively denied having made such an installation on his iphone, however, the missing screws and the 3^rd party display installed on the phone showed otherwise. In light of such circumstances, the said phone was sent to the 1^st Opposite Party's technical team for a detailed inspection in order to ascertain the existence of the 3^rdparty display on the Iphone. The technical team of the 1^stOpposite Party deduced that the display on the Complainant's iphone was indeed a 3^rdparty display and had conveyed the same to the 2^ndOpposite Party. Accordingly, as per the policy of the 1^stOpposite Party, the Complainant's device became non eligible for service and therefore the Iphone was returned by the 2^nd Opposite Party to the Complainant. Thereafter the Complainant had issued a legal notice dated 17.11.2014 to the Opposite Parties herein seeking a replacement of the phone or alternatively, a sum of Rs. 50,000 along with the damages towards alleged mental anguish to the tune of Rs.25,000 and Rs.5000 towards causing notice. As they had felt no need to respond to the frivolous and avaricious claims of the Complainant, especially in light of the infraction and breach of contract on the part of the Complainant with regard to the installation of a third party display in the Iphone while it was under its warranty period.It was denied that there was any "manufacturing defect" as such on the Complainant's iphone, the 3^rdparty display installed on the Complainant's iphone during the warranty period which amounts to a breach of contract, thereby rendering it ineligible for service by the Opposite Parties. Hence the question of inability on the part of the 2^nd and 3^rd  Opposite Parties to rectify any issue with the Complainant's phone does not arise. They were trying to shift blame on the Complainant was denied. It is unheard of to find a 3^rdparty installation on an apple gadget and it is also impossible for such a situation to arise especially in light of the fact that the 1^st Opposite Party is No.1 in the market for gadgets and remains so solely because it takes extreme precautions to ensure that Apple Quality is achieved and delivered to its customer. The present complaint filed on vexatious and baseless grounds with Opposite Parties that the Complainant had against the Opposite Parties on frivolous, sole motive inconveniencing the Opposite Parties herein and to extort moneys that he is not entitled to, at all costs and has come before this Hon'ble Forum with unclean hands by suppressing vital facts for the purpose of deceiving and manipulating to procure a favourable order in its favour.Hence the complaint is to be dismissed.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-6  were marked. The 1^st Opposite Party did not appear before this Commission even after sufficient notice served on them and was called absent and set exparte. The 2^nd and 3^rd Opposite Parties submitted its Proof Affidavit and Written Arguments. On the side of the Opposite Parties 2 and 3, documents Ex.B-1 to Ex.B-6  were marked. 

5.     Points for Consideration:-

1.Whether the 3^rd Opposite Party is an unnecessary Party to the Complaint?

2.Whether the Opposite Parties had committed Unfair Trade Practice?

3. Whether the Complainant is entitled for reliefs claimed?

4. To what other reliefs the Complainant is entitled to?

Point No.1 and 2:-

It is not in dispute that the Complainant had availed services of the 2^nd Opposite Party to repair his I-phone 5 and had handed over for repair during the warranty period on 23.01.2014, 12.03.2014 and on 03.11.2014 to the 2^nd Opposite Party.

It is in dispute that the defects of the Complainant’s I-phone was not rectified though the Warranty period is valid till 23.06.2015 on the ground that the Complainant had violated the terms and condition of the warranty of the 1^st Opposite Party.

 The Contention of the Complainant is that he had handed over his mobile phone to the 2^nd Opposite Party for carrying out repairs on 26.01.2014 as found in Ex.A-1, being Service Report and the same was repaired and returned and as such for other repairs had handed over his phone on 17.03.2014 to the 2^nd Opposite Party as found in Ex.A-3, being Service Report and the same was carried out and returned. When he had handed over his phone for the complaint of right and top side of the home button is not responding on 03.11.2014 to the 2^nd Opposite Party, as found in Ex.A-3, being Service Report, it was informed to him for the first time that the display was installed by a 3^rd party and hence the service could not be carried and to take back his mobile, which constrained him to cause a notice dated 17.11.2014 to be given to the Opposite Parties, which was marked as Ex.A-5 and in spite of receipt of his notice, as there was no response from the Opposite Parties, he was again constrained to send a legal notice dated 20.11.2014 to the Opposite Parties, in spite of receipt of the same there was no response from the Opposite Parties, the legal notice and the acknowledgement cards were marked as Ex.A-6, his mobile phone was not replaced or rectified and returned. The Opposite parties had committed Unfair Trade practice and had caused him serious mental agony, which entitles him for refund of the value of the Phone apart from compensation for mental agony.

The Contention of the 2^nd and 3^rd Opposite party are that the Complainant at no point of time had never approached the 3^rd Opposite Party for service of his phone and the 3^rd Opposite Party is an unnecessary party to the Complaint. The mobile phone was handed over to the 2^nd Opposite party for repairs and the same was carried out and the Complainant with satisfaction had taken back his mobile as found in Ex.A-1, in the feed back given by him it was mentioned as “very satisfied”, as well when he had handed over his mobile for repairs to the 2^nd Opposite party, after carrying out the repairs the Complainant with satisfaction had taken back his mobile as found in Ex.A-3, in the feedback given by him it was mentioned as “very satisfied”. Further contended that again on 03.11.2014 when the Complainant had handed over his mobile for repairs, his Iphone had dents on all corners and looked worse for wear. Regardless, the 2^nd Opposite Parties looked into the Iphone for the defects and had tried to resolve the same, in that particular instance, the 2^nd Opposite Parties could not resolve the issue externally and therefore had to look into the internal features for rectification. On doing so, it was found that a couple of screws were missing from the visual cowling plate which is generally indicative of the fact that the gadget had been opened up earlier. On inspecting further, it was discovered that in addition to the missing couple of screws in the display cowling plate, a third party display was also installed, which indicates that his Iphone was opened by a third party. In the previous two instances, when the 2^nd Opposite Party had rendered their services to the Complainant, at the time of (VMI) Visual Mechanic Inspection, did not find any such 3^rd party installations and/or interference on the IPHONE and had therefore processed it for repairs. Further contended that the Complainant had made such a third party display installation in the duration between the completion of the second service and when the Complainant had approached the 2^nd Opposite Party for a third service. Further contended that when an Apple gadget is under a warranty, and it is eligible for free service by the 2^nd and 3^rd Opposite Parties or any other authorised service provider of the 1^st Opposite Party, till the expiration of such a warranty, as well as, as per the terms and conditions of the warranty availed by the Complainant, display screen defects/replacement and other accidental damages are not unconditionally covered under the same. Further, during the tenure of such a warranty, if it is found that the gadget has been unauthorizedly hampered with by any third party interferences, its hardware/software (JAIL BREAK) including installation of third party features, the gadget will automatically become ineligible for service from any authorized service provider of the 1^st Opposite Party as per the terms and conditions of the warranty. The said fact was immediately brought to the attention of the 1^st Opposite Party and the Complainant. Hence the repairs could not carried out by the 2^nd Opposite Party and there is no unfair trade practice as alleged by the Complainant.

On perusal and careful reading of the Exhibits marked on either side, it is clear that the Complainant’s mobile phone was received for problems reported by the Complainant with minor dents found all over his iPhone/usage scratches as found in Ex.B-1 being the Repair Acceptance Form dated 23.01.2014 and after repair the Complainant had received his mobile with satisfaction as found in Ex.A-1 being the Service Report dated 26.01.2014, on the second time on 12.03.2014 when the Complainant’s mobile phone was received by the 2^nd Opposite Party for problems reported with deep scratches and chip off on whole unit as found in Ex.B-2 being the Repair Acceptance Form dated 12.03.2014 and after repair the Complainant had received his mobile with satisfaction as found in Ex.A-1 being the Service Report dated 17.03.2014. The Complainant again on 03.11.2014 approached the 2^nd opposite party for service of his mobile phone as Right and top side of the home button was not responding and at the time of handing over the condition of the phone was noted as Dents on all corners, Normal usage and stains as found in Ex.B-3 and in page No.8 of Ex.B-3, in Engineer Analysis, on 05.11.2014 it was mentioned that “when checked the issue of home button, by pressing all four corners and in middle, found home button top corner was not working. Hence whole tried to swapping home button flex assembly, found screws missing and third party display. Device is not eligible for service. And on 06.11.2014 the said status was informed to the Complainant”. Though the Complainant had pleaded that he had not given his mobile phone for any third party service, the 2^nd Opposite Party who had rectified the previous defects would have rectified the present defect in the home button as the 2^nd Opposite Party had found the screws missing and third party display, the same would not be eligible for service as per the terms and conditions of the warranty as per 4.1(ii) which clearly states that Apple may restrict service to the covered equipment’s original Country of Purchase. The Plan does not apply to (ii) Damage caused by (a) a product that is not covered Equipment, (b) accident, abuse, misuse, liquid contact, fir, earthquake or other external causes, (c) operating covered equipment outside the permitted or intended uses described by the manufacturer, or (d) service (including upgrades and expansions) performed by anyone who is not a representative of Apple or an Apple Authorized Service Provider (AASP). On perusal of Ex.B-5 the photograph showing missing two screws would show and prove the contentions of the 2^nd Opposite Party that the fact of missing screws and third party display has been informed to the Complainant, is sustainable and the same was admitted by the Complainant as found in Ex.A-5 being the letter dated 17.11.2014 and the contention of the Complainant that he had not provided his mobile phone to any third party is not sustainable.

The 2^nd and 3^rd Opposite parties relied on the following judgements in support of their contention with regard to deficiency of service without rectifying the defects on violation of terms and conditions of the warranty by the Complainant will not amount to deficiency of service;

1. Order passed by the State Consumer Disputes Redressal Commission , Punjab, Chandigarh on 29.09.2017 n F.A.No.10 of 2017 in Harsharan Kaur Vs Malhotra Radio & Watch Co & Others
2. Order Passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 09.03.2018 in F.A.No.731 of 2017 in Vipan Kumar Vs M/s. Flextronics Technology & 5 others.
3. Order Passed by Hon’ble National Consumer Disputes Redressal Commission , New Delhi, on 12.01.2010 in F.A.No.287/2005 in Manish Kumar Tiwari Vs M/s Commercial automobile Private Limited.
4. Order Passed by District Consumer Disputes Redressal Forum , Rewari, on 25.01.2018 in Consumer Complaint No.263 of 2016 in Sunil Vs Mobile Shop & 2 others
5. Order Passed by State Consumer Disputes Redressal Commission , U.T.Chandigarh, on 16.05.2016 in Anju walia Vs Sony India Private Limited & 2 others.

On foregoing discussions, it is clear that the Complainant at no point of time approached the 3^rd Opposite Party for any kind of service and no cause of action has been averred as against the 3^rd Opposite Parties in the Complaint by the Complainant, hence we are of the considered view that the 3^rd Opposite Party is not a necessary party to the above complaint and based on the Judegement relied upon by the Opposite Parties 2 and 3,  “we hold that the repairs that have been carried out and to be carried out does not attract any manufacturing defects as alleged by the Complainant and the 2^nd Opposite Party had acted diligently to rectify the defects of the Complainant’s iPhone, as there was breach committed in the terms and conditions of the warranty by the Complainant the repairs could not be carried out by the 2^nd Opposite party is legally sustainable”.

 Therefore, we are of the considered view that the 2^nd Opposite Party had not committed any deficiency of service in denying service of the Complainant’s iPhone, following the terms and conditions of the warranty.  Accordingly Point Nos. 1 and 2 are answered.

Point Nos. 3 and 4:-

As discussed and decided point no.1 and 2 in favour of the 2^nd and 3^rd Opposite Parties, the Complainant is not entitled for reliefs claimed in the Complaint and also for any other relief/s. Accordingly point Nos 3 and 4 are answered.

In the result this complaint is dismissed. No cost.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th day of August 2022. 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	26.01.2014	Copy of service report (original)
Ex.A2	04.06.2014	Copy of e-mail intimation for payment of extended warranty.
Ex.A3	17.03.2014	Copy of service report (original)
Ex.A4	-	Copy of warranty
Ex.A5	17.11.2014	Office copy of letter sent by the Complainant to Opposite Parties with Postal Acknowledgement
Ex.A6	20.11.2014	Office copy of notice sent by the Complainant’s counsel to Opposite Parties with postal acknowledgement

List of documents filed on the side of the 1^st Opposite Party:-

 

NIL

 

List of documents filed on the side of the 2^nd and 3^rdOpposite Parties:-

 

Ex.B1	23.01.2014	Copy of service report
Ex.B2	12.03.2014	Copy of service report
Ex.B3	03.11.2014	Copy of service report
Ex.B4	-	Copy of terms and conditions of warranty issued by 1st Opposite Party
Ex.B5	-	Series of Photographs showing the missing screws and parts from the Complainant’s handset
Ex.B6		Visual Mechanical Inspection Guide

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT