Delhi

West Delhi

CC/12/691

BALDEV SINGH - Complainant(s)

Versus

GLOBAL INFOMATIC - Opp.Party(s)

02 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III(WEST)

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.691/2012

 

In the matter of:

 

	Baldev Singh S/o Harinder Singh R/o A-144, Chander Vihar Nilothi Extn., New Delhi	........Complainant
	Versus

Global Infomatic

Through its Proprietor Mr. Durgesh Pandey,

16, Viswadeep Tower,

Distt. Center Janakpuri,

New Delhi 110 058

 

Hewlett Packard India Sales Pvt. Ltd.

Ground Floor, Crown Plaza,

New Friends Colony,

New Delhi                                                                       ......Opposite Parties

 

 

DATE OF INSTITUTION: JUDGMENT RESERVED ON:           DATE OF DECISION:

25.09.2012 31.10.2022  02.11.2022

 

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: Complainant in person

               OP.1 ex parte

               Mr. Harivansh Manav,Advocate for Mr. Vineesh Kumar,

               Counsel for OP.2

ORDER

 

Per: Mr. Anil Kumar Koushal, Member

 

          The brief synopsis of the  present complaint is as under:

1. The complaint states that he is a service man by profession. OP.No.1 is authorised dealer of opposite party no.2  who is engaged in the business of manufacturing electronic items and having its established brand “HP LAPTOP life's good" and supplies its products in domestic as well as international market.
2. The complainant states that he had purchased one HP Laptop (4530S probook, Serial No.CNU12615SR from OP No.1 for Rs.29,000/- against retail invoice bearing No. Gl/Retail/0128, dated 22.09.2011, issued by OP.1. However, after seven months from the date of purchase of the said HP Laptop, it suddenly stopped working. The screen of the said laptop went blank and was not displaying any images and on trying to reboot the system the Laptop was not switching on. There were manufacturing defects in the above mentioned said Laptop. Since the said Laptop was not working, the complainant had called engineer of OP.1 to repair it. From that day to till the filing of the complaint, the said HP Laptop is not working properly and the same was communicated to opposite party no. 1 and 2. The complainant had approached OP.1 and requested it to repair/replace the Laptop because it was within the warranty period but the OP.1 tried to avoid the matter on one  pretext or the other and the said Laptop was neither repaired nor replaced. The complainant was fed up roaming around the shop of OP.1 and  then approached the customer care center of OP.2 and lodged a telephonic complaint bearing No. 4679401133. It is submitted by the complainant  that  OP No.2 never bothered to provide the status of above HP Laptop to him and as clearly shown in e- mail dated 18.08.2012, the opposite party mentioned that “Our team is now processing the complaint and will get back to check the status of your complaint or to provide more information”. Thereafter the complainant had written an e-mail on 31.08.2012 to OP.2 demanding the status of his HP Laptop. However, the complainant was shocked and surprised to know the reply of customer care executive of opposite party No. 2 when he stated that the bill bearing No. GL/Retail/0128, 22.09.2011 issued by OP No.1 does not belong to Indian Customers and it was sold to some American person, therefore, the said laptop is not within the warranty period as per records of the company/OP.2, and they are unable to repair the same free of cost. If the complainant wants to get it repaired, then he will have to bear the expenses for its repair. According to the complainant, this prima-facie shows that  O.P. No. 1 had cheated the complainant by  selling the old/second hand H.P. Laptop and charged the price for new H.P.Laptop which is totally unfair and the O.P. No. 1 adopted the Unfair Trade Practice as per definition of Consumer Protection Act, 1986.
3. Complainant states that he had approached OP.1 again and appraised it about the observation of OP.2 customer care, then the O.P No.1 again avoided the matter on one or the other pretext and blatantly said that “whatever you want to do you can? I am not going to repair/replace your laptop”.
4. Since the complainant was not getting any response from OPs 1 & 2, left with no other choice, the complaint approached Police by dialling their customer care No.100.   and lodged the complaint in police station against the OPs. Then the police personnel advised the complainant to file a consumer complainant before the Consumer Forum and this is how the Complainant approached this Commission for redressal of his grievance.
5. Before approaching this Commission, being aggrieved by the conduct of OP.1 and OP.2, the complaint was compelled to serve  legal notice dated 5^th September 2012 on both the OPs. However, no response was received thereto from anyone.  
6. Complainant submits that he has suffered great loss financially, mental agony and harassment due to the conduct of opposite party nos. 1 and 2 and fed-up with manufacturing defects and roaming around the service centers of opposite parties. Since the OPs 1 & 2  are  unable to repair/replace the said Laptop within the warranty period, this amounts to deficiency in service U/S 2(1)(g) of the CP Act, 1986 and the opposite parties are liable for the same. The OP No.1 and 2 have the  mala-fide intention not to provide the goods as per his commitment and adopted unfair trade practice to promote their sales of goods by selling old/second hand goods as new one. It is also reiterated by the complainant that such deficiency on the part of O.P. Nos.1 & 2 has not only disrupted Complainant's work but also caused an irritation, immense trauma and pain, waste of a lot of time of the complainant in the entire chain of events from selling of HP Laptop till filing of the present complaint and the complainant is liable to realize the same from them. In addition to this, the complainant is entitled to the cost of the notice and the present complaint.
7. Along with the complaint, the complainant has attached the invoice dated  22.09.2011 towards purchase of the laptop, email dated 18.8.2012 received by him from  OP.2 and email dated 31.8.2012 written by the  complainant to OP.2, copy of legal notice dated 05.9.2012 served on  OPs. 1 & 2.

          The following prayers are made in the complaint:

a. The opposite parties to replace the old H.P. Laptop with new one without any defect and one or two year warranty period.

b. The Opposite Parties to pay damages to the tune of Rs.4,00,000/- (Rupees Four Lacs Only) towards selling the defecting goods, harassment, mental agony, adopting unfair trade practice and financial loss suffered by the Complainant.

c. To Restrain the Opposite Parties from selling the defective goods and causing further financial loss to the public at large;

d. To Restrain the Opposite Parties to indulge in Unfair Trade Practice for selling the defective goods as new one to the public at large.

8.       Upon admission of the complaint on 25.09.2012, notice was issued to OPs.    OP.2 filed its reply in terms of orders dated 29.05.2013.

9.       We find from the record that on 17.09.2013, since  the complainant was not represented before the Bench,  the complaint was dismissed in default of appearance. Then the complainant approached the Hon’ble SCDRC by way of appeal for restoration of the complaint and the appeal was allowed vide orders dated 30.01.2014 and the complaint was restored to its original number. 

10.     Upon restoration of the case file on 03.03.2014, notice was again issued to the parties to the dispute.  Since OP.1 despite service, neither put in appearance nor filed any reply to the complaint, it was proceeded against ex parte vide order dated 2^nd June, 2015.

11.     In the written statement filed by OP.2 it is submitted that  the complaint is false, frivolous, and not maintainable in law or on facts. All the allegations and averments contained in the complaint are denied except those that are specifically admitted hereunder.

12.     It is submitted by OP.2 that the complainant  has suppressed the fact that  OP.2  was providing the services. It is submitted that the complaint is vague. The complainant has been using the system and he has not cooperated with the answering OP to take the system to the service centre of OP.2. After using the system for a considerable period, now the complainant is looking for a new system in the name of deficiency of service. It is submitted that there is no deficiently of service or unfair trade practice on the part of answering  opposite party. The allegation to the effect that there is manufacturing defect is also baseless. OP.2  submitted that since the computer is under the warranty, the obligation of the answering Opposite Party is only to repair the computer and not to replace the same. The answering Opposite party has repaired the laptop and replaced the disturbing parts, as and when a complaint was registered by the complainant, which cannot be denied by the complainant. Answering Opposite Party is always ready and willing to repair the system if there is any complaint in the system, but the Complainant is neither interested in giving it for repair nor interested in any engineer of the opposite party visiting the premises of the complainant and checking the unit in order to determine the issue with respect to the system. The complainant denied access to  the system as he wanted the system to be replaced. It is submitted by OP.2 that the laptop is sophisticated electronic equipment consisting of various minute components and the working of the same  depends on various factors such as proper electrical supply, proper handling of the system and the software installed on the system. Any mishandling of the system or installing pirated software would hamper the proper working of the system. Therefore, if any component is defective, either changing the same or repairing the same would solve the entire issue with the computer. The whole purpose of taking the warranty by consumer is because the electronic system is always vulnerable to failure due to some or any of the defects in the components. Therefore, it is not in the interest of justice that the answering OP No.2 shall not be provided the opportunity to analyze the defect in the system and rectify the same subject to the available remedies provided in the warranty. The intention of the complainant is nothing but an experiment to obtain a new system by misrepresenting this  Court.

13.     It is submitted by OP.2  that even in respect of product purchased outside or sold to any person with different nationality, the answering opposite party used to serve the customer/complainant on appropriate terms and conditions of warranty. It is submitted that  OP.2  is serving lakhs of customers with all Nationality in the world and this is the first time a baseless allegation of this level is raised against it. It submitted that it has not sold any defective product to the complainant. Whenever there was a complaint, it was readily addressed by the answering opposite party. In fact when the complainant mentioned about battery issue, it was readily resolved. One issue was raised that the data card was not detecting which was not a hardware issue. In fact in an electronic product, there is likely to have technological issue owing to the software problems and the same cannot be attributed to the answering opposite party. As per the company records, the issues were resolved and the complainant was using the system. Now, when the warranty period is over and the system became old, the complainant is looking for new ways for a new system on false premises and he is misusing the provision of the Act.

14.  It is stated  by  OP.2 that without prejudice to its contentions, still the opposite party is willing to help the complainant on terms, if he is willing to approach the opposite party.

15.     The complainant is not entitled for any compensation and the complaint is liable to be dismissed with compensatory cost.

16.     Not being satisfied with the reply filed by OP.2, complainant filed rejoinder in which he rebutted the contentions and allegations of OP.2.  It is submitted that the claimant has mentioned each and every detail in his complaint. It is submitted that the Complainant approached the service centre of OP.2 many times, but the opposite party has not considered the request/complaint of the claimant/Complainant.

17.     Complainant  admitted to the extent that the opposite party No.2 has repaired  the laptop but again and again the same problem has reoccurred. So the above said problem is continuing and has not been removed till date. It is submitted that neither any Engineer visited at the premises of the Complainant/claimant nor checked the unit in order to determine the issue with respect to the system. It is further stated that after four months from the date of purchase of the said laptop, it started  creating some problems (screen of the said laptop went blank and was not displaying any images). It is submitted that the Complainant/claimant has only intention that the laptop should work properly. Even though a huge amount has been paid by the Complainant towards purchase of the laptop, still he can not enjoy the service from the said laptop and he has no intention to misrepresent to this Court.

18.     It is submitted by the complainant that he is  not concerned with all nationality in the world. He is concerned only with the present laptop which was/is not working in proper condition and the opposite parties did not serve the customer/complainant on appropriate terms and conditions of warranty.

19.     Complainant states that the  said laptop is defective one. The Complainant never stated in his complaint about the battery issue. At the time of purchasing the said laptop, the opposite party No.1 gave the assurance to the Complainant that any fault/problem in the said laptop would be resolved in any manner whatsoever. All the allegations are wrong and denied as stated by the opposite party No.2.

20.     It is submitted that the Complainant visited many times to the service center, but no response from the opposite party, hence, the Complainant has no option/remedy but to file the present complaint for his grievances before this Hon'ble Court.

21. It is submitted that for the last seven months, the Complainant is getting harassed in the hands of  OP.2. At present, the said laptop is totally in a dead condition after paying a huge amount to the opposite party No.1. The opposite party No.2 is liable for compensation to the Complainant/claimant as prayed in the complaint.

22.     Evidence by way of affidavit was filed by the complainant and he exhibited the documents filed on record as Ex. C.W.1/1 to C.W.1/3(colly). OP.2 also filed evidence by way of affidavit but did not exhibit any document since none was filed on record.

23.     Written arguments were filed by the complainant and OP.2  on record.  We have heard oral arguments advanced by the complainant and Mr. Harivansh Manav, Proxy counsel for OP.2 and also gone through the pleadings filed.  Both reiterated the pleas taken in their respective pleadings filed on record.

24.     After hearing arguments  advanced by  the complainant and   on behalf of OP.2 and upon surfing the pleadings filed on record, certain clarifications were sought from both of them on 21.09.2022 and the matter was adjourned to 31.10.2022.  During  further hearing on 31.10.2022, the complainant stated that after making telephone complaint of which he does not have record,  he had written email to OP.2 on 31.08.2011 in response to the email of OP.2 dated 18.08.2011.  Complainant further stated that in order to get the defect in the laptop rectified, he was constantly visiting the shop of OP.1 but no remedy was provided to him.  Complainant vehementally denied the claim  of OP.2 made in the written statement that battery of his laptop was  replaced.

25.     Counsel for OP.2 was also raised the following questions during the further hearing on 21.09.2022:

“They have not replied to email dated 31.08.2011 of the complainant. Further they have not replied to the allegation of the complainant made in the complaint that he was sold a second hand laptop by OP.1.  OP.2 was also asked to clarify as to how they say that the battery of the laptop  was changed.  Proof to this effect  be filed on record. Counsel for OP.2  stated that  they have taken stand in the written arguments that OP.1 was not their authorised dealer. However, it was pointed out by the Bench that this plea has never been taken in the written statement  so filed by the OP.2.  OP.2 to file an affidavit clarifying all the questions  put to them as aforementioned.”

26.     In the hearing held on 31.10.2022, counsel for OP.2 placed on record an email reply received  from OP.2 which stated that  OP.2 is not aware  if the laptop  was sold to an American Citizen.  However, the unit  is not an Indian model and the same was informed to the customer/complainant.

27.     As regards reply to the email dated 31.08.2011 of complainant, OP.2 replied  that  this is an old  case  and OP.2 is unable to find any emails  being written to HP by the customer/complainant on the provided date.

28.     With regard to the query of the Bench whether OP.1 is authorised dealer of OP.2, the reply of OP.2 was that OP.1 was not their authorised dealer/service centre.

29.     Further to the query of the Bench whether the battery of laptop of the complainant was replaced, OP.2 replied  that  as per previous shared details, the battery was replaced during September, 2011. However, they will not be able to share the CSO now as this was done 11 years back.

30.     Counsel for OP.2 stated that the email reply dated 10.10.2022 now filed by them on record  may be treated as their final reply and he has nothing more to add to this and the Bench may pass appropriate orders.

31.     From the reply of OP.2, one thing is clear that  the model of laptop  which was sold to the complainant was not an Indian model.  This shows that OP.1 was at fault in selling a second hand laptop manufactured by OP.2 to the complainant at the cost of a new laptop. Complainant denied the allegation of OP.2 that he was ever informed that  the laptop sold to him was not an Indian one but an imported one.  In any case, this plea has never been taken in the written statement filed by OP.2.

32.     The further contention of OP.2 that  OP.1 was not their authorised  selling agent/dealer does not make any difference to the outcome of this case as in any case OP.2 in their written statement had claimed that  “since the computer is under the warranty, the obligation of the answering opposite party is only to repair the computer and not replace the same”.  This shows that  OP.2 was bound to repair the laptop  in question irrespective of the fact whether it was  sold by an authorised or unauthorised dealer of OP.2.  OP.2 never took the plea  in their written statement that OP.1 was not their authorised dealer. This is clear cut admission on the part of OP.2 that the laptop in question was their own product under warranty and  they were bound to repair it and in fact were repairing it and still willing to repair it.   

33.     The contention of OP.2 made in the latest email reply dated 10.10.2022   to the effect  that the battery of the laptop was replaced is unsupported by any document on record to that effect.  It is now stated by  OP.2 that  “as per previous shared details the battery was replaced during September 2011.  However, we  will not be able to share the CSO now as this was done 11 years back.”    This fresh  claim of OP.2 falsifies its   stand  as with the written statement, which was filed way back in 2013, i.e. 9 years back,  no such details or documents were filed on record.  This goes to show that the claim of OP.2 is based on surmises and conjectures.

34.     OP.2  in their email reply dated 10.10.2022 filed on record  submitted that they are not aware of any email dated 31.8.2011 having been sent to them by the complainant, being an old case now.  This also falsifies the stand of OP.2  taken now as in the written statement filed way back in 2013,  OP.2 had been silent  even on the email sent by it to the complainant on 18.08.2011 what to talk of email of complainant dated 31.08.2011.  This shows deficiency in service on the part of OP.2 as it on the one hand  acknowledged vide its email dated 18.08.2011, the complaint made by the complainant  but failed to address the issue  when asked for confirmation vide email dated 31.08.2011 of the complainant by simply absolving itself on the basis of case being very old.

35.     OP.2  though admitted in its email reply dated 10.10.2022 that OP.1 was not its authorised dealer, but it has not shown any proof on record as to what action it has taken against OP.1 for selling a second hand  laptop to the complainant by following unfair trade practice. At the same time, OP.2 admitted in the written statement  that it  was very well maintaining and repairing the laptop and still willing to rectify the defect in the laptop.  The  conduct of OP.1  in selling a second hand laptop in the name of new to the complainant, amounts to unfair trade practice  and OP.2 was in complicity in agreeing/admitting to repairing the laptop at any cost during warranty.  OP.2 in the written statement, on the one hand (in para 4) submitted that the computer was under warranty but at the same time in para 6 thereof, it submitted that “now when the warranty period is over and the system became old, the complainant is looking for new ways for a new system on false premises and  he is misusing the provisions of the Act.”. The two contradictory statements of OP.2  are beyond our comprehension as to what they want to prove on record.

36.     For the contradictory stands taken by OP.2 in their written statement and  written arguments, we are guided by the recent pronouncement of the Hon’ble Supreme Court in the case of JSK INDUSTRIES PVT. LTD.VS ORIENTAL  INSURANCE COMPANY LIMITED,(CIVIL APPEAL NO.7630  OF 2022, arising out of SLP (C) No. 21524 of 2018), decided on 18.10.2022 wherein the Hon’ble Apex Court observed  that a party to the  dispute cannot take a stand beyond the pleading filed on record.  In that case the Insurance Company had taken a defence which  was different from the stand taken in the repudiation letter and the defence so taken was struck down by the Hon’ble Court.   

37.     For the foregoing  analysis made by us, we are  of the firm  opinion that  OP.1 indulged in unfair trade practice in selling a used/second hand laptop to the complainant in the guise of a  new laptop and charged  amount for the new one.  OP.2 was also a party to  the deal as it never stopped acknowledging warranty  of the product and  agreeing to repair the laptop, knowing fully well that it was an old laptop.  Further the OP.2 failed to prove on record that the battery of the laptop was repaired as no such proof in regard thereto has been filed on record.  OP.2 also very  conveniently ignored acknowledging the email dated 31.08.2011 of the complainant on the ground  that it being an old matter, they cannot commit anything.  This also amounted to deficiency in service as the complainant was forced to file the present complaint after having not received any reply to his said email and legal notice sent to both the OPs.   Accordingly, the complaint is allowed.  We agree with the complainant that no useful purpose will be served now after ten years in repairing or replacing the laptop as lot of technological changes/advancements have taken place in the electronic gadgets by now. Accordingly, OP.2 is directed to refund Rs.29,000/- being the price of  the laptop in question  to the complainant along with interest @ 6% p.a.  from the date of filing of the complaint till final recovery.  OP.1, who indulged in unfair trade practice in selling the second hand/used laptop to the complaint at the price of a new laptop is directed to pay Rs.10,000/- to the complainant as compensation.  OP.2 who was also deficient in providing satisfactory services to the complainant  for repair of his laptop, resulting in harassment, mental agony forcing him to file the present complaint, is also directed to pay a compensation of Rs.5000/- to the complainant. Let this order be complied with  within 30 days of receipt of copy of this order.

A copy of this order shall be supplied free of cost to the rival parties on a written requisition being made in terms of Regulation 21 of the CPR, 2020 in the  name of President of the Commission.

 

Richa Jindal                              Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                        (Member)                               (President)