BALDEV SINGH filed a consumer case on 02 Nov 2022 against GLOBAL INFOMATIC in the West Delhi Consumer Court. The case no is CC/12/691 and the judgment uploaded on 07 Nov 2022.
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:
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 2nd 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)
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