BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 15th day of September 2018
Filed on : 23-05-2017
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.201/2017
Between
K.C. Eldho, : Complainant
S/o. Late K.V. Chakkappan, (By Adv. Jijo Thomas, M/s. BC-370
Advocate, M/s. BC 370 Law Law Associates, High Court North
Associates, Compara Junction, End, Compara Junction, Cochin-
High Court North End, 682 018)
Ernakulam, Cochin-682 018,
Res. at Kochery House,
Kangarapady P.O.,
Cochin-682 021.
And
1. Apple India Pvt. Ltd., : Opposite parties
19th Floor, Concorde Tower C, (1st O.P. By Adv. Sreekala Krishnadas,
UB City, No. 24, Vittall Mallya M/s. R&P Partners, 42/1917-C, Old
Road, Bangalore 560 001, Railway Station Cross road, Kombara,
rep. by its Managing Director. Ernakulam-682 018)
2. Ample technologies Pvt. Ltd., (O.ps 2 to 4 by Adv. P. Jayabal Menon
Having its registered office at M/s. J&J Associates, T3, III floor,
91/1, 6th A Main, 10th Cross, Empire Buildings, Old Railway
RT Nagar, Bangalore – 560 032, Statopm Road, High Court East End,
rep. by its Managing Director. Kochi-682 018)
3. M/s. Imagine,
A division of Ample technologies
Pvt. Ltd., F58 1st floor,
Lulu International Mall,
Edappally, Kochi,
rep. by its Manager.
4. iCare – Apple Authorized
Service Centre, Marottichodu
road, Edappally, Ernakulam,
Kerala – 682 024,
rep. by its Manager.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant purchased a laptop on 02-02-2017 for her daughter who secured an admission in Brunal Law School, London. The complainant was made to believe that the product is a highly acclaimed product and is of superior quality. Though the price of lap top was more than 2 times than the price of similar lap top of other company. The complainant decided to purchase the one manufactured by the opposite party for a stress free ownership and usage promised by the 3rd opposite party on account of the warranty for one year for the product. From 25-05-2017 onwards the lap top started showing intermittent problems in witching on and some times automatically shut down while in use . The complainant watched the lap top for a few days and while on 01-05-2017 the lap top failed to switch on. The lap top was entrusted to the 4th opposite party, authorized service centre, on the advice of the 3rd opposite party. The laptop was received by the 4th opposite party and it was accepted for repairs and complainant was promised that the laptop would be replaced or repaired at the earliest. On 03-05-2017 evening the complainant was informed that there was liquid damage inside the laptop and found corrosion and liquid stained inside components, and therefore there would not be any warranty cover and the complainant would have to pay a sum of Rs. 19,469.39 towards the repair charges. There was no instances of falling water or any other liquid on the lap top. The allegation of corrosion to the parts of the lap top within a period of two months from the date of purchase can only be a technical wrong . There was no damage to the key board or screen of the lap top. The laptop was manufactured in the year 2015 and it was sold to the complainant after two years. This fact was noticed by the complainant only a reference of an early 2015 model was found in e-mail communication. The complainant was made to believe by the 3rd opposite party that the laptop was a newly manufactured one. The 3rd opposite party never disclosed the date of manufacture to the complainant, which is a material suppression. The purchased product was damaged due to its old age . The opposite party had therefore committed unfair trade practice and they were taking undue advantage of the technological ignorance of the complainant in the matter. The lap top was never opened by any unauthorized service centre at any time. The warranty zeal of the product was intact at the time of entrusting the product to the 4th opposite party for service. The opposite parties 1 to 4 are colluding each other to deny the warranty on the product purchased by the complainant by falsely alleging that there was liquid content. The product supplied to the complainant was having manufacturing defects in developing liquid damage in side over a period of time by keeping it unused for a long period. The complainant caused to issue a lawyer notice to the opposite parties and it was replied by the opposite party with untenable contentions. The complainant suffered mental agony, inconvenience, and sufferings and the hands of the opposite parties by denying his legitimate right in getting the warranted product repaired free of cost under warranty and also for the unfair trade practice committed against him. The complainant seeks refund of the purchase price of the laptop along with costs and compensation to the tune of Rs. 1,25,000/- through this complaint.
3. Notices were issued to the opposite parties. All of them appeared and resisted the complaint by filing their respective versions.
4. Version of the 1st opposite party
The complaint is malafide, devoid of merit and contradicts established principles of law. A consumer who willfully destroy, damage or negligently handle a product is not eligible to claim any relief under a Consumer Protection Act. When consumers cause damage to product by external factors which are not associated with manufacturing inherent condition of the product and such acts are in complete disregard to and in breech of the warranty policies of manufacturers, can not claim relief under the Consumer Protection Act. The provisions and terms of warranty specifically exclude the case of the present nature. The opposite party No. 4, on inspection found that the laptop had been damaged by the liquid damage resulting in the technical issues suffered by the complainant in using the same. Opposite parties 3 and 4 found corrosion and liquid stains in side the components and the liquid contact indicators (LCI) was also triggered, Thereby it was rendered out of warranty. Liquid damage will not cover under warranty and the quotation sent for all the 3 parts were refused by the complainant. The complainant is not entitled for any relief as prayed for.
5. The opposite parties 2 to 4 filed a joint version taking the very same contentions, and added that there was no manufacturing defects in the lap top and that the complainant had filed the complaint in an attempt to gain unfair advantage at the expense of the opposite parties. The complaint is therefore sought to be dismissed.
6. On the above pleadings the following issues were settled for consideration.
- Whether the opposite parties proved that there was liquid contact due to the mishandling of the product by the complainant?
- Whether the complainant has proved deficiency in service or unfair trade practice on the part of he opposite parties.
- Reliefs and costs.
7.The evidence in this case consists of the oral evidence of PW1 and Exbts. A1 to A7 on the side of the complainant. The opposite party did not produce any oral or documentary evidence.
8. Issue No. i. The complainant was examined as PW1. The complainant purchased a laptop from the 3rd opposite party on payment of Rs. 66,900/- as per Exbt. A1 invoice dated 29-01-2017. The lap top was entrusted to the 4th opposite party on 02-05-2017. After receiving the laptop for repairs the opposite party No. 4 issued Exbt. A2 e-mail communication demanding a payment of Rs. 90,469.39 towards the cost of repairs on the ground that, on inspection, it was found that there was liquid damage inside the machine as they found corrosion and liquid stains in side the components. It is seen from Exbt. A2 that the product purchased from the complainant as per Exbt. A1 in the year 2017 was a product manufactured during early 2015. The learned counsel for the complainant argued that the corrosion allegedly occurred was due to the storage of a lap top for more than 2 years after its manufacturing, until it was sold to the complainant under in the guise that it was a brand new lap top. Exbt. A2 is a communication issued by the 4th opposite party disclosing the fact that the product was manufactured during early 2015. It is pertinent to note that any product manufactured using metal is likely to have corrosion, if it is kept unused for a long period of time. It is to be noted that the complainant had a definite case that from the beginning itself after the purchase of the lap top on 2nd February 2017 it had started showing intermittent problems in switching on and some times automatically got shut down while in use. He had also sworn to that effect while examining as PW1.
9. The argument of the learned counsel for the complainant therefore that he was provided with a very old stock product as though it is a newly manufactured one. An electronic product which was manufactured 2 years prior to the date of purchase can not be said to be a new one as within two years the components would have become out dated consequent to the later immersions in electronic technology.
10. The factual details narrated by the complainants have not been challenged by the opposite parties. Therefore, no further proof is required to accept the case of the complainant barring the disputed question of liquid damage allegedly caused at the hands of the complainant. The opposite party was taking advantage of the warranty clause in Exbt. B3 wherein exceptions are provided. As per exception (d), “the damage caused by the accident, abuse, misuse, fire liquid contact, earthquake or other external causes, are exempted from the purview of repairs under warranty”. The above said exclusion is vaguely written without any definition or explanation of the nature of the excepted incident. We find that clause ‘d’ as stated above in the warranty clause exemption has not been proved by the opposite party by producing independent evidence in support of it. It is trite that when a party takes advantage of an exemption clause to deny the benefit of the other party the burden is on him to prove the same. In this case, the opposite party did not adduce any evidence, let alone the evidence of an external expert, to prove that the lap top contained parts with liquid damage and further that such damage had occurred due to external impacts. Therefore, we find that the opposite parties had committed gross deficiency in service in demanding payments as per Exbt. A2 to repair the laptop without obliging the general conditions on the warranty produced as the Exbt. A3 by the complainant.
11. The learned counsel for the complainant argued that the exclusion clause as above is abstract and vogue. The incorporation of abstract and vogue words without defining it, leave it to the convenience of the opposite party to decline the warranty on any complaint and it become say subjective discretion of the opposite party, which by itself is arbitrary and is forbidden. It was also argued that the inclusion of the above aforesaid words as exception for warranty is opposed to public policy and it involves and implies injury to the property owned by the consumer and such process incorporated in any agreement is to be treated as unlawful, especially in view of the fact that the very object of the agreement to provide warranty is defeated by the unlawful process and hence such clauses are unlawful and void and hit by Section 23 of the Indian Contract Act . Therefore it was argued that the complainant is entitled to get the benefit under warranty.
12. In the light of the proved circumstances as above we find that the exclusion clause in the warranty issued to the complainant unilaterally, is an unfair trade practice at the hands of the opposite party and the demand of Rs. 90,469.39- as per Exbt. A2 to repair a laptop which originally co- sted only Rs. 66,900/- is the height of unfairness on the part of the opposite party which would tantamount to not only the commission of unfair trade practice but also would amount to tarnishing the dignity of a consumer. We find extreme end of unfairness and unfair trade practice and hard core deficiency in service on the part of the opposite parties in denying the services under warranty in the present case. The 1st & 2nd Issues are therefore found in favour of the complainant.
13. Issue No. iii. Having found issue Nos. i and ii in favour of the complainant and the complainant having been found insulted and demoralized by issuing Exbt. A2, we find that the complainant is entitled to get a compensation of Rs. 1,00,000/- for the mental agony suffered by him consequent to the insult, commission of unfair trade practice and for having provided deficient service to the complainant by the opposite parties.
14. In the result, we make the following directions for compliance by the opposite parties 1 to 4 who are liable jointly and severally
i. The opposite parties 1 to 4 shall repair the laptop by replacing all defective components within a period of one month from the date of receipt of a copy of this order, free of cost, as though it was covered under valid warranty.
ii. The opposite parties 1 to 4 shall pay a compensation of Rs. 1,00,000/- to the complainant within a period of one month from the date of receipt of a copy of this order.
iii. The opposite parties shall pay the costs of the proceedings to the complainant which we estimate at Rs. 5,000/-
- The payment of costs and compensation stated above will not carry interest if paid within the stipulated time as aforesaid. If the payment is not made within the stipulated time as above it will carry interest @ 12% p.a. from 23-05-2017 the date of filing of this complaint till the date of realization.
Pronounced in the open Forum on this the 15th day of September 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Copy of tax invoice dt.29-01-2017
A2 : Copy of G-mail dt. 03-05-2017
A3 : Copy of warranty conditions
A4 : Copy of lawyer notice
dt. 04-05-2017
A5 : Copy of g-mail dt. 10-05-2017
A6 : Copy of reply notice
dt. 09-05-2017
A7 : Copy of tax invoice
dt. 15-05-2017
Opposite party's exhibits: : Nil
Depositions
PW1 : K.C. Eldho
Copy of order despatched on :
By Post : By Hand:
