SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 against Opposite parties seeking to get an order directing Opposite parties to pay Rs.1,00,000/- to the Complainant as compensation of the loss and damage sustained to her together with cost of the proceedings.
Brief facts of the case are that placing reliance on the advertisement made by the 1st OP in dailies and in the visual medias, the complainant purchased a lap-top on 01/07/2019 from its dealer, 2nd OP expending an amount of Rs.37,900/-. Complainant submits that immediately after the purchase, the instrument took long time and considerable lag to get it started. On approaching the dealer, the complainant was told that it will get speed soon. However, the complainant continued to use the instrument with the said defect since the same was not cured as told. Adding to the agony of the complainant, within 8 months of the purchase, the instrument ceased to function. On approaching the 2nd OP, it is ascertained that nonworking of the instrument is because of the defect to the hard disk. However, the said defect was rectified and the instrument was functioning for quite some time. From January 2021 onwards, the instrument has not been working and is at fault. On approaching the 2nd OP so as to cure the defect the complainant was told that the instrument warrants a whole sale service for which the complainant has to pay. The workers of the 2nd OP insulted the complainant that the defect of the instrument is solely because of her usage and incompetence in the operation of electronic items. They had also misbehaved to the complainant which caused substantial mental agony and hardships to the complainant. The complainant even suspects the 2nd OP as false dealer of the1st OP. Complainant further submits that so as to obtain a second opinion the instrument was taken to HP service Centre, Kannur. On verification of the instruments, the complainant was told that the defect to the instrument is a manufacturing defect for which the dealers are not responsible and the 1st OP is only liable. It is submitted that if the complainant came to know of the inferior quality of the instrument, she would not have purchased the same spending an amount of rs.37,900/-. From the date of purchase the complainant has been running from pillar to post to get the instrument in a running condition which caused substantial hardship to the complainant. The complainant submits that the OPs had played unfair trade practice on the complainant. Even thought the complaint issued a letter to the 1st OP they paid a deaf ear for the same. From the attitude of the OPs, it is crystal clear that the OPs will not heed to the demands of the complainant without the recourse of law. Hence this complaint.
After receiving notices OPs 1 and 2 filed separate versions. OP No.1 contended that the OP No.1 is a global renowned manufacturer of various types of computers, printers, laptops etc. The products that are manufactured and marketed by the OP 1 are approved by the appropriate authority which is highest body to certify the IT products and go through a process of quality inspection before the same is dispatched to the authorized channel partner for sale on a ‘principal to principal’ basis. The answering OP submits that, the allegations of the complainant in respect of inherent defects in laptop in absence of an expert report, miserably fails and the instant complaint deserves to be dismissed. It is well established proposition of law that, a person who claims any defect in the product of any renowned company, the onus lies on him to prove the said allegations that the laptop is defective with supporting documents of proof but in the present case, the complainant miserably failed to prove the alleged manufacturing defect. It is further submitted that, the laptop purchased by the complainant is a well established product in the market and over a period of years, the consumers are using the product and the complainant had purchased the laptop, after being satisfied with the condition of the same and its performance and used the laptop for a period of 8 months from the date of purchase ie., till the date reporting the 1st issue in the laptop, which goes to show that the laptop has no manufacturing defects. If the laptop has manufacturing defects as alleged, the laptop would have not worked from the date of its purchases. The answering OP state that, they do not provide any service /remedy available under the warranty free of cost, if the complaint in relation to the product occurs after the expiry of the stipulated warranty period. Even if the fault occurs before the expiry period of the warranty he answering OP is not liable to provide any service to the customer, free of cost, if the customer communicates such fault to the answering OP after the expiry of the warranty period. In the case in hand, the subject laptop is provided with base warranty of a period of one year from the date of purchase, ie, from 01/07/2019 to 30/06/2020 as on date the laptop is out of the warranty period. It is further submitted that, whenever any customer reports to a service centre for any repairs he complaints/grievances of the customer are recorded in the job card, which do not imply admission of any defects in the product, but a mere representation of the customer’s grievances on the said product. Thereafter standard checks are carried out at the service centre and observation is recorded by the service engineer on the job-card. The complainant had reported no display issue in the laptop in question within the warranty, the same was attended to promptly by the service team of the answering OP and resolved by replacing the hard disk drive as per the terms and conditions of the warranty. That for the key board issue reported during January 2021 when the laptop is out of the warranty period, service,/repair is offered on trade basis as per the warranty but the complainant has refused the same and with apprehension and expectation for repair free of costs along with exorbitant compensation/damages and costs had filed the complaint suppressing the material facts. There is no deficiency in service or unfair trade practice by answering OP as alleged by the complainant. It is submitted that it is found that, the complainant during March 2020 ie, after almost 8 months of purchase had reported blank display issue in the laptop to the customer care center of the answering OP. On receipt of the complaint, the service team of the answering OP have attended the same promptly, supported the complainant each and every time, and resolved the issues by servicing and replacing the hard disk drive (same is mentioned in the service call report) as per the term of warranty ensured that the laptop is working fine as per specifications and design, post which the service team of the answering OP has delivered the laptop to the complainant and closed the complaint. Subsequently during January 2021, complainant had reported keyboard issue in the laptop in question, on receipt the service team attended to the complainant, learnt that the laptop is out of the warranty, the service team educated the complainant that the laptop is out of the warranty period and offered to repair/ resolve the issue on chargeable basis as per the terms of the warranty. But complainant denied the trade support and insisted for service free of costs in spite of explaining that, the laptop in question does not qualify warranty support. Any mishandling of the system or pirated software, viruses would seriously hamper the functioning of the system. In the event of any of its components not functioning as it should, then the component could be replaced to fix/resolve the issues. There are no known issues or manufacturing defects in it, the issues reported by the complainant in the laptop in question are validated by technical team and confirmed that laptop is working fine as per specifications, further has offered to service/repair the issue/s in the laptop as per the terms of the warranty. There is no deficiency in service on their part and prayed for dismissal of complaint.
OP No.2 submitted that 2nd OP admitted that this complainant had purchased HP laptop in dispute. It is submitted that main complaint of the complainant is that the device took long time to get started and the defect is a manufacturing defect for which the dealers are not responsible, that is the 2nd OP is not liable. It is further submitted that if there is delay in loading the Operating system, programs and files, it could have occurred due to two reasons, a hardware problem or a soft ware problem. If it is a hardware problem it is a manufacturing defect and it has to be ascertained by experts. OP2 submitted that this OP does not know whether the complainant is comparing this laptop loading time with the speed of a laptop with SSD drive. It is submitted that there is no deficiency of service on the part of 2nd OP. Hence prayed for the dismissal of complaint.
Complainant has filed her proof affidavit and documents. She has been examined as Pw1 and marked Ext.A1 to A5. On the side of OPs, the managing partner of OP No.2 has filed his proof affidavit and was examined as Dw1. Both witnesses were cross-examined by the other party. OP No.1 produced one document marked as Ext.B1.
After that the learned counsel of OP NO.2 filed their argument note. Main argument of OPs that there is no evidence of any manufacturing defect in the said lap top and hence in the absence of a manufacturing defect, OPs are not liable to pay any compensation to the complainant. The OP cited various judgments made by appellate commissions in favour of his arguments that the OPs could be made liable only, if there was evidence of manufacturing defect. As per the version of OP, if a lap top suffers from manufacturing defect, it stops workings from the date of its purchase. Further stated that the complainant used the lap top for a period of 8 months from the date of purchase. The main issue involved in the complaint is from January 2021 onwards; the laptop has not been working and is at fault. Complainant has stated that immediately after the purchase, the lap top took long time and considerable lag to get it started. However the complainant continued to use the instrument with the said defect since the same was not cured as told within 8 months of the purchase, the instrument ceased to function. 2nd OP ascertained that the reason for non working was due to the defect to the hard disk. According to OPs the complainant had reported no display issue in the lap top within the warranty on 10/03/2020, the same was attended to promptly by the service team of OP No.2 and resolved by replacing the hard disk drive as per the terms and condition of the warranty. That for the key board issue reported during January 2021. When the lap top is out of the warranty period, service repair is offered on trade basis as per the warranty but the complainant has refused the same. The said complaint was never made before January 2021, which shows that there was no manufacturing defect. Further both parties contended that an expert opinion should be called for in such case and it is mandatory requirement, but in the present case, no such expert opinion has been called. The onus of proving that the manufacturing defect was there lies on the complainant. Hence according to OPs, no compensation was required to be paid to the complainant as there has been no negligence on their part.
Complainant alleged that when she had taken the lap top on January 2021, due to the defect not working, the workers of the 2nd OP insulted the complainant that the defect of the lap top is solely because of her usage and in competence in the operation of electronic items. Complainant further stated that so as to obtain a second opinion, the instrument was taken to HP service centre, Kannur. On verification of the instrument, the complainant was told that the defect to the instrument is a manufacturing defect.
We have examined the entire material on record and the contentions of both sides. The man point of argument of OP No.2 is about the fact that there was no evidence of any manufacturing defect in the laptop. The same should be proved by expert evidence.
In this case there is no dispute that within 8 months of the purchase of lap top the complainant approached OP No.2 with a complaint of ‘Not on’. Further on 04/02/2021, the same lap top was taken to OP No.2 with a complaint delay in loading and keyboard problem which shows the lap top has defect. In such case we have taken a view that whenever a consumer purchased a brand new goods like lap top, it should not have been taken to the service centre for rectifying one defect or the other. According to OPs the defect happened due to misuse of complainant. Then we have taken a view that onus shift to the manufacturer to show that the lap top does not suffer from manufacturing defect. Complainant has proved and discharged the initial onus that the laptop is defective, on the basis of Ext.A2 and A3.
In our view whenever manufacturer of a product offers to sell the brand new vehicle, to the dealer or customer, there is an implied contract as to the claim of the manufacturer that the vehicle being sold by it does not suffer from any kind of fault or imperfection, which is required to be maintained.
From the entire evidence, it is very clearly brought out the lap top in question is a defective one. Ext.A4 is the notice sent by complainant to OP NO.1 on 15/03/2021. But OP No.1 had not even sent any reply to the notice.
It is further observed the Consumer Protection Act 2019 is a benevolent social legislation and is aimed at providing for better protection of the interests of the consumers. Here complainant is senior citizen, retired from education department. Given the facts available, interests of the complainant can be protected by giving relief and she is not subjected to the technicalities of proving whether any manufacturing defect exists or not.
But on the discussion above, we are of the view that both OPs, manufacture and the dealer are held to be liable for giving relief to the complainant. Since the product is found to be defective, it is better to order for the refund of the amount.
In the result complaint is allowed in part. Opposite parties 1 and 2 are directed to pay Rs.50,000/- to the complainant towards value of the laptop and compensation for the mental agony and hardship. Opposite parties are further directed to pay Rs.5,000/- as litigation expense. Opposite parties 1 and 2 are jointly and severally liable to pay the awarded amount within one month from the date of receipt of the order. Failing which the amount Rs.50,000/- carries interest @ 7% per annum from the date of order till realization. Complainant is at liberty to file execution application to execute the order under the provisions stated in Consumer Protection Act 2019. Complainant shall return the laptop to opposite party No.1 on compliance of order by both parties.
Exts.
A1- Bill issued by 2nd OP.
A2- Communication by 2nd OP
A3- Service call report
A4- Notice issued to 1st OP
A5- Track consignment
B1-Service call report
Pw1-Complainant
Dw1-Arun T V- Witness of OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
