PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of November 2011
Filed on :27/05/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 273/2011
Between
Thomas Palatty, : Complainant
S/o. P.T. Paul, (By Adv. R.S. Kalkura,
Residing at Palatty house, “Srivathsa” 61/335, Judges
Mookkannoor P.O., Avenue, Kaloor, Kochi-17)
Angamaly-683 577.
And
1. Focuz Computers, : Opposite parties
59/2397, Banerjee road, (By Adv. Dias Law Associates
Ernakulam-682 018, Solicitors & Notary, Market road,
rep. by its Manager. Ernakulam, Cochin-682 035)
2. M/s. Thoshiba India
Private Ltd., Level 14 and 15, (2nd and 3rd O.Ps absent)
Concorde Towers UB City,
1 Vittal Mallya road,
Bangalore -560 001.
3. M/s. Compumobiles,
50/954, near Edapally post office,
Edapally, Cochin-682 024.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant purchased a Toshiba L510-D4311 model laptop from the 1st opposite party which was manufactured by the 2nd opposite party on 19-12-2009. Within a short span of purchase on 16-01-2010 the laptop shows complaint and it was found that both the speakers and the Bluetooth of the same were defective and not working. The machine was taken to the authorized service centre. Though the service personnel assured the complainant that the defects were rectified but they did not do that. During March 2010 the blue tooth became defunct. The blue tooth was replaced and the laptop was returned on 31-03-2010. As the defects persisted even after replacement of the Bluetooth, the complainant handed over the laptop to the authorized service centre on 15-05-2010. The key board was replaced, intermittent defects with regard to the Bluetooth persisted. The laptop developed multiple defects again and on 18-09-2010 the complainant reported the defects to the service station. The defects were rectified only during October and the complainant could take delivery of the laptop only on 14-10-2010. On 06-11-2010, the laptop was handed over to the service station with the complaint of waving on the LED. The same was entrusted for rectification on 10-01-2011 and was returned to the complainant on 03-02-2011. But the defects were not rectified. The personnel of the service station had stated that they had emailed to get a spare mother board for replacement. But till date there is no further response from the opposite parties. The complainant is aggrieved by the conduct on the part of the opposite parties. The opposite parties have sold a computer with manufacturing defects to the complainant. The said laptop was purchased by the complainant for the promotion of education. But the complainant could not put the said laptop for the said purpose. Most of the time the laptop was in the service station of the opposite parties. Hence the complainant approaches this Forum for seeking remedy against the opposite parties.
2. Version of the 1st opposite party.
The complainant purchased a laptop from the 1st opposite party on 19-12-2009. The 1st opposite party is not a necessary party in the complaint. The complainant has not approached them with any complaint and hence the 1st opposite party is not guilty of any deficiency of service. The laptop is manufactured by the 2nd opposite party and the 3rd opposite party who serviced the laptop. Hence the complaint against the 1st opposite party may be dismissed and they may be exonerated from this case.
3. The complainant and 1st opposite party represented through counsel. Despite the receipt of notice from this forum opposite parties 2 and 3 remained absent. Complainant was examined as PW1. Exts. A1 to A8 were marked. Neither oral or documentary evidence adduced by the 2nd opposite party. We have heard the respective counsel for the parties.
4. The points that arose for determination are as follows:
i. Whether the complainant is entitled to get replacement of the
disputed laptop or refund of its price?
ii. Compensation and costs if any?
5. Point No. i&ii. The case of the complainant is that the laptop under dispute was suffering from manufacturing defects since on several occasions the defects of the same had rectified and some of its parts were replaced however the defects are persisting. The 1st opposite party contended that they are only the dealer of the machine and the warranty has been provided by the 2nd opposite party, so they are not liable to compensate the complainant.
Ext. A1, the tax invoice dated 19-12-2009 shows the transaction between the parties Ext. A2 is the copy of service report dated 15/01/2010 Ext. A3 is the job sheet dated 31-03-2010, Ext.A4 is the service report dated 15/05/2010, Ext. A5 is the service report dated 18-09-2010, Ext. A6 is the service report dated 06/11/2010. On a perusal of Exts. A2 to A6 service reports it is evident that from 15/01/2010 onwards the lap top shows different defects and some of its parts were replaced. Ext. A6 is the service report of 06/11/2010 in which towards the head ‘Action taken’ it is noted that “Touch pad not responding at the time of returning the machine”. The date of return as per Ext. A6 is 03/02/2011. The above endorsement in Ext. A6 goes to show that the defects are persisting. Ext. A9 is the copy of notice issued by the complainant to 2nd opposite party and Exts. A8 is the acknowledgement for the same. It is evident that the complainant had served notice to 1st opposite party. Even after receipt of notice from this Forum nothing is forthcoming on the part of the 2nd and 3rd opposite parties.
The Hon’ble National Commission in Nachiket P. Shingaonkar Vs. Pandit Automotive Ltd. and another (2008 CTJ 867 NC) held in para 14 as follows:
“14. In today’s world there are several manufacturers and they have flooded the market with several brands of vehicles. They are also alluring the consumers by issuing advertisements in the print and electronic media making huge claims about the capacity and good quality of their vehicles introduced by them in the market. Hence, the gullible consumer who is lured by these advertisements, expects defect free smooth service at least in the first year of purchase of the car. In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the consumer Forum in the written submission filed by OP1 there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitor i.e. facts speak themselves hence there is no deed to refer the vehicle to a third party for giving an opinion”.
In the instant case as well the recurring defects of the lap top was caused only due to its manufacturing defects that too within the warranty period. Hence the 2nd opposite party being the manufacturer is liable to replace the product under dispute. The 1st opposite party is the dealer and 3rd opposite party is the service centre they are not answerable to the manufacturing defect of the disputed product. Hence 1st opposite party is exonerated from the liability. It appears that due to the recurring defects of the lap top the complainant was deprived of enjoying the benefits out of the machine such a long period to which the 2nd opposite party is answerable. Therefore the 2nd opposite party is liable to pay compensation to the complainant. We are fixing the compensation at Rs.5,000/- We are not ordering any costs of these proceedings.
5. Accordingly, we allow the complaint as follows:-
(i) The 1st opposite party shall replace the disputed laptop of the complainant with a new one of the same quality and description with fresh warranty according to the choice of the complainant or in the alternative the 2nd opposite party shall refund the price of the laptop under disputes as per Ext. A1 Tax invoice to the complainant. In both events the complainant shall handover the disputed machine to the 1st opposite party simultaneously.
(ii) The 2nd opposite party shall pay Rs. 5,000/- to the complainant as compensation
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the said amount shall carry 12% p.a. interest till realization.
Pronounced in the open Forum on this the 28th day of November 2011.
Sd/- C.K. Lekhamma, Member.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Tax invoice dt. 19-12-2009
A2 : Customer call cum service
Report
A3 : Copy of delivery challan –
Returns
A4 : Service report
dt. 15-05-2010
A5 : Service report
dt. 18-09-2010
A6 : service report dt. 06-11-2010
A7 : Letteer dt. 07-02-2011
A8 : A.D. card
Opposite party’s Exhibits : : Nill
Depositions:
PW1 : Thomas Paul Palatty
