Delhi

North

CC/401/2022

SH. BANAMALI SHUKLA - Complainant(s)

Versus

CROMA - Opp.Party(s)

09 Jan 2024

ORDER

11District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CC No.: 401/2022

 

IN THE MATTER OF:

 

Sh. Banamali Shukla, Advocate

S/o Late S.N. Shukla

R/o House No.461, 2^nd Floor,

B Block, Baba Colony,

Burari, Delhi 110084                                                                 …Complainant

Versus

 

The Store Manager, Croma,

Infiniti Retail Ltd.,

27, Banglow Road,

Near Ambitabh Banquet Hall, 

Kamla Nagar, Delhi-110007                                                   … Opposite Party -1

 

The CEO/Managing Director, Croma,

Regd. Office:- Unit No. 701 & 702,

7^th Floor, Kaledonia, Sahar Road,

Andheri East, Mumbai-400069                                              … Opposite Party -2

 

HEWLETT PACKARD ENTERPRISES INDIA PVT. LTD.,

THROUGH ITS MANAGING DIRECTOR,

24, SALARPURIA ARENA,

HOSUR MAIN ROAD, ADUGODI,

BANGALURU- 560030                                                              … Opposite Party -3                

6698606.      

09-01-24

 

Ashwani Kumar Mehta, Member:

 

1.                The facts of the present complaint, filed under Section 35 of the Consumer Protection Act, 2019,as alleged by the Complainant, are that the Complainant purchased a laptop vide item code No.225371, item description HP15 DU0120TU 8Gi3 4GBN 1 TB+off (Sr. No.CND0035375) on payment of a sum of Rs.35,490/- from Opposite party No.1 vide invoice No.SLA032030071301 dated 16.6.2020. After one month of purchasing the said laptop, the said laptop stopped working and thereafter, the Complainant visited at the shop of Opposite party No.1 for redressal of his grievance and the Opposite party No.1 assured the Complainant that the said laptop will be checked and after removing the defect, the same will be handed over to the Complainant after one day. Next day, the Complainant received the said laptop and thereafter, the said laptop showed defects many times and the Opposite party No.1, after removing the defects, returned the laptop to the Complainant and the customer care on 2-3 occasions sent the said laptop at the workshop of the Hewlett Packard Enterprise India Pvt. Ltd/Opposite party No.3  who is the manufacturer of HP Laptop and liable to compensate the Complainant and replace the laptop.

 

2.                It has been alleged that in the month of April, 2021, the said laptop  stopped working and due to lockdown, the Complainant was unable to visit the shop of the Opposite party No.1 for getting the defect removed. When the lockdown was  withdrawn in the second week of June, 2021, the Complainant visited the shop of the Opposite party No. 1 for repair of the said laptop and since then,  laptop are in possession of the Opposite party No.1 for repairing but till date the Opposite party No.1 has not returned the laptop and avoided to return the laptop to the Complainant on one pretext or another and now the Opposite party  No.1 has demanded Rs.26,000/- from the Complainant on the pretext that the motherboard of the said laptop is not in working position and  supplied the second hand laptop to the Complainant after getting the full payment of new laptop i.e. tantamount to criminal breach of trust. It has been alleged that the Opposite party No.1 has sold the second hand laptop to the Complainant because since the  day of purchase , the laptop is not working properly.

 

3.                It has further been stated by the complainant that on 23.06.2021, the Complainant visited  the shop of the Opposite party No.1 and demanded the aforesaid laptop but the Opposite party No.1 flatly refused to return the same and told that it was sent to the work shop of HP Laptop Company and it is in possession of the Hewlett Packard Enterprise India Pvt. Ltd.  Thereafter, the Complainant sent a legal notice to the Opposite parties which was duly served upon them and the Opposite party No.1 has sent a false and frivolous reply to the said notice.

 

4.                It has also been contended by the complainant that due to wrong act of the Opposite parties, Complainant being a lawyer, has suffered huge financial losses as during the lockdown period the Complainant required the said laptop for video conferencing. The Opposite parties has sold the sub standard laptop to the Complainant claiming it to be a new one. The act of Opposite parties are illegal, unlawful, uncalled for, unjust, arbitrary and against the principles of natural justice and against the settled principle of law.

 

5.                The complainant has filed this complaint stating that cause of action for filing the present complaint arose in favour of the complainant and against the Opposite parties as enumerated above and the same is still subsisting and continuing. It has been prayed that the opposite parties be directed to replace the old laptop with new one and pay a sum of Rs.5,00,000/- (Rupees Five Lakh) with interest @ 12% p.a. till the date of payment of the said amount as mental and physical harassment and professional loss and Rs.22,000/- as legal expenses to the complainant. It has also been prayed for any other and further relief(s), which this commission may deem fit and proper in the given facts and circumstances, may also be passed in favour of the complainant and against the Opposite parties. 

   

6.                 Accordingly, notices were issued to the OP to defend the complaint before the commission but the OP-3 neither appeared nor did send any communication despite service of the notice. Since the OP-3 chose not to appear despite service and has been proceeded Ex-parte, the allegations made by the Complainant against it, have remained un-rebutted. However, the OP-1 & 2 have filed joint reply stating that :-

1. At the outset,  Complaint filed against the Opposite Party No. 1 and 2, is wholly misconceived, false, frivolous, baseless, bad, vexatious, not maintainable, gross abuse of process of law and is liable to be dismissed in limine. The Complainant has completely failed to make out any case against Opposite Party No. 1 and 2 and is required to point out as to how they are co-extensively liable along with the Opposite Party No.1 to make payments of the amounts as specified in the Complaint. The above Complaint merits outright dismissal against Opposite Party No. 1 and 2 as the same is neither maintainable in law nor on facts. The above Complaint is absolutely baseless and flagrant abuse of process of law and the Opposite Party No. 1 and 2 has been wrongfully and erroneously impleaded as a party to the above Complaint by the Complainant solely for the purposes to harass and blackmail them. In any Consumer Complaint, a Complainant is required to make out a case and is required to establish a cause of action against the Opposite Party, however, upon mere perusal of the above Complaint, it is clear that the Complainant has miserably failed to make out any case nor does the Complainant has any cause of action against the Opposite Party No. 1 and 2. Therefore, it is abundantly clear that the present complaint is frivolous and vexatious and is therefore liable to be dismissed under Consumer Protection Act, 2019 ("the said Act").
2.       The Complainant is guilty of misjoinder of party as they have wrongfully       

added the Opposite Party No. 1 and 2 as the Opposite Party, knowing

fully well that the Opposite Party No. 1 and 2 is not in any manner

concerned with any of the alleged manufacturing defects or after sale

services as stated in the entire complaint by the complainant, and on this

ground alone the above complaint deserves to be dismissed against the

Opposite Party No. 1 and 2 with costs.

 

7.                The Opposite Party No. 1 and 2 has also replied on merits as under:

 

1.  the Opposite Party No. 1 and 2 cannot be in any manner held responsible for any defects in the manufacturing since manufacturing and related defects that may occur is the direct responsibility of the manufacturer thereof i.e. the Opposite Party No.3, since Opposition Party No. 1 and 2 is not involved in activities relating to manufacturing including the activities of assembling and packaging.
2. in the series of Judgments of Consumer Court in similar such complaints, the Consumer Forums have time and again held that when there was a manufacturing defect in respect of a goods supplied by the dealer, but manufactured by the other party i.e. by the manufacturer, Only the manufacture of "defective" goods was liable to make good the loss of the Consumer/Complainant for all the loss or injury suffered as a result of negligence in manufacturing and not the dealer. The Opposite Party No. 1 and 2 states that its position is akin to that of the dealer and hence cannot be held responsible. The Opposite Party No. 1 and 2 is merely involved in the demonstration, guidance and support to the customers through its hired employees. Thereafter, the Consumer himself/herself verifies the same and then the transaction is completed with handing over of the goods bought in proper package and the remuneration being received by the Opposite Party No. 1 and 2. This concludes the transaction and contract between the Complainant and the Opposite party No. 1 and 2 ending all and any obligations of the Complainant with respect to future defects that may be discovered upon unpacking of the goods and its use. However, the Opposite Party No. 1 and 2 ensures that it provides effective after sale support by guiding the Consumer about the further steps to be taken in case of defect in the product.
3. the Opposite Party No. 1 and 2 functions through its established Retail Stores in different parts of the country. A Retail Store as defined by the American Market Association is, "A place of business (establishment) open to and frequented by the general public, and in which sales are made primarily to ultimate consumers, usually in small quantities, from merchandise inventories stored and displayed on the premises."

"Retail trade" is defined in the International Standard Industrial Classification (ISIC) as the re-sale (sale without transformation) of new and used goods to the general public, for personal or household consumption or utilisation". From a bare perusal of such definitions, it is evident that the role of the Opposite Party No. 1 and 2 is limited to sale and nothing further and for all after sale services, the Opposite Party No. 1 and 2 refers all the Complaints, if any, to the Manufacturers and follows up with them and tries to resolve the same at the earliest possible date.

iv. It is an admitted fact that the Complainant had purchased HP 15 DU0120TU 8G13 4GBN ITB + Off (hereinafter referred to as the said Product) from Opposite Party No. 1 and 2 as on16.06.2020. It is also admitted that the Complainant was informed about the warranty period of the said Product which was manufactured by Opposite Party No. 3 and had warranty of 12 months from the date of Purchase. The Opposite Party No. 1 and 2 upon receiving any complaints from its consumers ensures that appropriate directions and help are forwarded to the consumers and that they are directed to approach the manufacturer since the domain and service areas of the Opposite Party No. 1 and 2 are limited in cases of defects in the manufactured products. However, Opposite Party No. 1 and 2 was shocked and appalled on learning that it had been made party to the aforementioned Complaint despite having provided the appropriate and best possible directions to the Complainant. After receiving the Complaint, the Opposite Party No. 1 and 2 has informed the manufacturer i.e. the Opposite Party No. 3 and have immediately called upon them to look into the matter and immediately resolve it. As per Opposite Party No. 3 reports as there was a physical damage in the Product as same could be repaired after making the payments by the Complainant as physical damage is not covered in Opposite Party No. 3 warranty policy. The Complainant have chosen to claim monetary reliefs jointly from the manufacturer as well as from the Opposite Party No. 1 and 2 after having explained to them that they are not in any manner liable for the same, however Opposite Party No. 1 and 2 had agreed to help the Complainant in following up with the manufacturer on regular basis till such time their complaint was completely resolved.

v. So far as the purchase of the said Product is concerned, the Opposite Party No. 1 and 2 did sell the product to the complainant for a sum of Rs. 35.490/- (Rupees Thirty Five thousand four hundred and ninety only). However, the warranty on the product is of manufacturer i.e. the Opposite Party No. 3 for a period of Twelve (12) months from the date of sale. Therefore, the Opposite Party No. 1 and 2 cannot be in any manner held liable for the period for which Manufacturer Warranty in respect of the product sold to the Complainant is valid and subsisting. The Complainant has been already informed by the Opposite Party No. 3 that the Complainant will have to make the payments as the Product was physically damage. As there is no complaint reported by the Complainant in initial three months that means the said Product was defect free.

vi. Opposite Party No. 1 and 2 cannot be in any manner liable or held responsible for any of the alleged hardships that the complainant might have undergone as alleged. So far as the alleged deficiency is concerned, the Complainant is wrongly accusing the Opposite Party No. 1 and 2 of deficiency in service about the alleged defects in product. The Opposite Party No. 1 and 2 cannot be in any manner held responsible for any of the alleged defects in the manufacturing of the said Product which may be a matter of grievance to the Complainant.

8.                The complainant has also filed rejoinder and evidence affirming the allegations levelled against the OPs.   

9.                Accordingly, the complaint has been examined on merits on the basis of the documents/evidences & material available on records and it has been observed that :-

a.       The laptop was purchased on 16-06-2020 and defects started appearing in the first month. This fact is corroborated with the admission of the OP-1 & 2 in its reply dated 29-06-21 to legal notice of complainant that the product was received on 22-07-2020 with the complaint of defects and sent to the Authorised service centre where Hard disk was replaced within the warranty period and the product was returned to complainant on 05-08-2020.

b.       The complainant has alleged that he was facing problems continuously in operating the laptop and he could not contact the OPs due to covid lockdown and restrictions prevailing thereafter.

c.       As per the receipt issued by the OP-1 & 2, the said laptop was given for removal of the defects on 08-06-2021 when the warranty period was at the verge of expiry but instead of initiating immediate action for rectifications of the defects, the authorised service centre of OP-3 waited for warranty to expire to escape from the responsibility with the intention to extract the money from complainant. Therefore, an estimate of repair for Rs.28154/- was issued on 16-06-2021.

 

 10.              In view of the above observations, we feel it appropriate to conclude that the Opposite Party-3 has failed to provide a functional Laptop to the complainant, (who could not discharge his professional duties being Advocate during the COVID period through video conferencing due to defects in the laptop,) and therefore, the complainant has suffered directly due to deficient service of the OP-3 (HEWLETT PACKARD ENTERPRISES INDIA PVT. LTD.), in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. However, no deficiency of service is observed on the part of OP-1 & 2 being seller of the product.               

11.               Therefore, we feel appropriate to direct the OP-3, to  pay Rs.35490/- (Rupees Thirty Five Thousand Four Hundred Ninety only) within thirty (30) days from the date of this order, with interest at the rate of 9% p.a. from 08-06-2021 (date of deposit of laptop with OPs) till the date of the payment alongwith compensation of Rs.25,000/-(Rs. Twenty Five Thousand only) for the mental pain, agony, professional loss and harassment. It is clarified that if the abovesaid amount is not paid by the OP-3 to the Complainant within the period as directed above, the OP-3 shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

12.               Since the defective product/ Laptop is already lying with OP-3, the complainant shall not claim the same from OP-3 after receipt of the amount from OP-3 as directed in para 10 above.

13.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                               HARPREET KAUR CHARYA

                                                         Member                                                                     Member       

                                                    DCDRC-1 (North)                                               DCDRC-1 (North)     

                                                           

    DIVYA JYOTI JAIPURIAR

     President

       DCDRC-1 (North)