Orissa

Cuttak

CC/80/2020

Kamal Lochan Senapati - Complainant(s)

Versus

Gupta Distributors - Opp.Party(s)

R K Pattanaik

04 Jul 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                   C.C.No.80/2020

Kamal Lochan Senapati,

S/O:Bibhuti Bhusan Senapati,

At:Jagannath Sahi,Kafla Bazar,Near I.G.Womens College,

Cuttack.                                                                                                 ... Complainant.

        

                                                Vrs.

1.        Gupta Distributors,Authorized Dealer,

Represented through its Proprietor,

Sector-1,Markatnagar,CDA,Cuttack.

 

2.        H.P.World,

Branch Incharge,Authorized Service Centre,104,Ground Floor,

Sahidnagar,Bhubaneswar-751007.

 

3.        HP Inc.,

Chairman Cum Managing Director,

GF, Global E Business Ops Pvt. Ltd.,

No.66/2,Ward No.83,Bagmane,

Tech Park,7^th Floor-A wing “Embassy Prime”,

CV Raman Nagar,Bengaluru,Karnatak....Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    05.10.2020

Date of Order:  04.07.2022

 

For the complainant:            Mr. R.K.Pattnaik,Adv. & Associates.

For the O.P No.1.      :           Mr. P.K.Mishra,Adv. & Associates.

For the O.P No.2       :                            None.

For the O.P No.3        :          Mr.A.K.Samal,Advocate.

 

Sri Debasish Nayak,President                                                  

            Case of the complainant in nutshell is that he being a student of Stewart Science College,Cuttack had purchased one H.P.Laptop for his study purpose on 30.5.20 by paying a consideration amount of Rs.37,490/- after being attracted from the advertisement of the said Laptop which provides benefit of extended warranty and free service facilities for student purchaser.  On 6.8.20 the complainant noticed that in the said Laptop which was purchased by him from the O.Ps, the screen became blank and was without any images for which he had to contact the O.Ps.  After receiving the complain from the complainant, a technical person was deputed from the Authorized Service Centre of the O.Ps at Bhubaneswar who had inspected the Laptop of the complainant and had taken snapshot of the Laptop in question on 14.8.20.  The technical person had gone away assuring the complainant to take up the matter with the manufacturer and either to replace or to repair the same in a short period.  On 19.8.20 the complainant received a message through mail that the effect in question in the laptop does not fall within the warranty terms and conditions for which it cannot be replaced but can be repaired if the complainant is willing to pay the cost of the damage part.  It was further mentioned in the mail that the standard warranty does not extend to any hardware product that has been damaged or is found defect due to accident, misuse, liquid spills, abused contamination or other external causes.  The complainant has further clarified in the complaint petition that the defect in the Laptop was not due to misuse rather the defect was in the mother board which was inherent.    On 22.8.20 the complainant received another mail from the O.P wherein his service request was closed.  Having no other way out, the complainant had to file this case claiming refund of the cost of the Laptop to the tune of Rs.37,490/- along with interest @ 12% per annum with effect from 30.5.20 till the total amount is quantified.  The complainant has further claimed a sum of Rs.20,000/- towards his mental agony and harassment and a sum of Rs.5000/- towards the cost of litigation. 

            The complainant has filed copies of certain documents and the correspondences are made with the O.Ps in order to prove his case.

2.         On the other hand, out of three O.Ps, O.P No.2 have not contested this case and was set exparte vide order dt.2.2.21.  As such O.Ps 1 & 3 have contested this case but have filed their separate written versions.  As per the written version of O.P No.1, the complaint petition is liable to be rejected being not maintainable, barred by law of limitation, the complainant had no cause of action to file this case. It is claimed by O.P No.1 in his written version that after selling a product, the responsibility of the dealer ceases and it is the duty of the manufacturer to look after the after sale service and warranty against any manufacturing defect.  Of course O.P No.1 admits in his written version about the purchase of the Laptop by the complainant on 30.5.20 but refuses about the approach of the complainant regarding any defect in the Laptop (HP brand) which the complainant had purchased from him.    The O.P No.1 has categorically mentioned in his written version that the defect if any in the Laptop in question is to be undertaken by the manufacturer and thus O.P No.1 is in no way liable for which O.P No.1 has prayed to dismiss the complaint petition which is not maintainable against him. 

            O.P No.3 in his written version has stated that the product while being manufactured are subjected to strict quality check, test trial and after such quality inspection, the same is sent for sale.  That apart they have authorised service centres for providing qualitative repair works as and when necessary through experienced personnel.  The O.P No.3 has relied upon a decision of the Hon’ble National Commission in the case of K.L.Arora Vrs. Groovy Communications(2002) 3 CPJ 92(NC) wherein it is held that there is necessity of expert evidence to prove the allegation of manufacturing defects in the Laptop of the complainant.  Hence this Hon’ble Forum in the absence of an expert report on behalf of the complainant, ought to direct the complainant to produce an expert’s report in support of his allegations as provided U/S-38(2)(C) of the Consumer Protection Act,2019 above and in absence of the same, the allegations of the complainant cannot be established at the instant case and the complaint case ought to be dismissed with cost.  In this connection he has also relied upon the decision of Rahul Banik Vrs. Dell India Pvt. Ltd. & Ors, wherein it is also held that in case of complain of manufacturing defect, the onus of proof cannot be shifted to the shoulder of manufacturing company.  According to O.P No.3, the Laptop in question had warranty for 1 year with effect from 30.5.20 to 29.5.21 and after getting the compliant from the complainant on 10.8.20 a technical expert was deputed who could report that due to thermal events on the mother board such defect is noticed and the same is not covered under the warranty, thus the same could have been repaired on payment of charges to which the complainant had refused.  Accordingly O.P No.3 in his written version has stated that there was no deficiency in service.  In this score, he had relied upon the judgement in the case of S Patabiraman  Vrs. Sp St Palaniappan 1994(2) CLT 261(NC) and also has relied upon another Decision of the Hon’ble Apex Court in the case – Bharti Knitting Company Vrs. DHL Worldwide Express Courier(1996) 4 SCC 704, wherein it is held that when the complainant signs contract documents he is bound by its terms and conditions and the onus would be on him to prove the terms and conditions in which he had signed the contract.  Accordingly, the O.P No.3 has prayed to dismiss the complaint petition as filed being not maintainable.  He has filed a copy of correspondence.

3.         Keeping in mind the averments as made in the complaint petition so also in both the written versions of O.Ps 1 & 3, this Commission is of a considerate view to settle the following issues in order to arrive at a proper conclusion here in this case.

            i.          Whether the case as filed by the complainant is maintainable?

            ii.         Whether the case is barred by law of limitation?

            iii.        Whether there was any deficiency in service on the part of O.Ps?

            iv.        Whether the complainant is entitled to the benefits as claimed by him?

Issue No.3.

            Out of the four issues, issue no.3 being the pertinent issue is taken up first for consideration here in this case.

            While submitting the written notes of argument, O.P No.3 has relied upon a catena of decisions in the case of M/s. Tractor Dealer Farm Equipment & Company Vrs. Ghanshyam Maurya & Ors. reported in 2016(4) CPR 412(NC) where the placitum is “No Automobile Engineer or any other expert was examined by complainant to prove alleged defect in tractor- Since petitioner had denied alleged defect in tractor, it was necessary for complainant to get tractor examined from an expert and then file affidavit alongwith opinion of expert to prove defects alleged by him- That having not been done, complainant failed to discharge onus placed upon him.  Manufacturing defect must be proved by expert evidence.”He has also relied upon a decision in the case of Baljeet Kaur Vrs. Divine Motors & Another reported in III (2017) CPJ (NC) wherein the placitum is “Manufacturing defect as alleged has not been proved before Fora below, by reference to any expert report in this regard_ When manufacturing defect is alleged onus of proof has to be on complainant_ Affidavits are no substitute for expert opinion”.  He has relied upon another decision in the case of M/s. Monarch Innovative Technologies Pvt. Ltd. Vrs. Manoj Krishna Thakur reported in (2014) CPR 265(NC), wherein the placitum is “No opinion or expert evidence was produced by complainant before District Forum to prove that machine supplied to him suffered from some manufacturing defect_ In absence of such evidence, Fora below were not justified in holding the machine supplied by petitioner company to be defective when stand taken by petitioner company was that machine supplied by it did not have any manufacturing defect”.  O.P No.3 also relied upon another decision in the case of Kanchanamani Devi  Vrs. General Manager,M/s. Tata Motors Ltd. & Ors. reported in 2018(1) CPR 307 (NC) wherein the placitum is Allegation of manufacturing defect must be proved by cogent evidence.” And in another case of reported Toyota Kirloskar Motors Pvt. Ltd. & Anr. Vrs. Tirath Singh Oberoi reported in NCJ 204(NC) wherein the placitum is “Manufacturing defects cannot be determined on the basis of facts and circumstances of case or on the suggestion of surveyor in his report_ An expert report is mandatory.”

            Of course there are quite number of judgments on the question of manufacturing defects and this Commission is also of the same view that the plea of manufacturing defect when taken by the complainant, it is the complainant himself who is to prove the same.  In this case as it appears, the complainant is a 12^th class student of Stewart Science College,Cuttack had purchased the HP brand Laptop after going through the advertisement of the Company providing extended warranty.  Having agreed to purchase the HP brand Laptop the complainant had paid the consideration amount and had received the Laptop.  It is admitted fact that after receiving the said Laptop, the defects were noticed in the Laptop by the complainant for which he had made correspondences with the O.Ps either to repair/replace or refund the consideration amount.  The question of replacement on the plea of manufacturing defect cannot be allowed here in this case since because the complainant has not brought any evidence in order to prove that the said alleged defective Laptop was examined by any technical expert in the said line who had given his written opinion mentioning therein that the Laptop pin question suffers from manufacturing defect.  But one thing harps to our mind that when within the warranty period there was some defect noticed in the purchased Laptop of the complainant which was immediately brought to the notice of the O.Ps, O.P No.1 had tried to escape by stating that it was not his job; rather after sale it was the manufacturer who should look after the after sale problems.  The plea of O.P No.3 is that the defect as noticed can be repaired but the complainant had to pay the charges of the damaged parts as because the complainant is bind by the terms and conditions of the contract and the warranty does not cover the defect of the Laptop in question.  In this connection O.P No.3 has relied upon a decision that the complainant is bound by the terms and conditions after signing the contract.  Quite strangely O.P No.3 had not proved any scrap of document so as to appraise this Commission that if the complainant had signed any such contract while purchasing the Laptop and thereby he is bound by the terms and conditions of the contract.  In absence of such, this Commission disagree on the said score as taken by the O.P No.3.  O.P No.3 has stated that the warranty of the said HP Laptop does not cover the damaged part of the Laptop in question for which the complainant has to pay the charges in order to repair the same.  This plea which, according to O.P No.3 is there in the warranty conditions of the said Laptop in question.  Be that as it may, it is to be proved by O.P No.3, who take such plea that while purchasing the HP Laptop, the customer who is complainant-consumer, was made to understand of such terms and conditions and knowing fullywell about the same, the complainant had purchased the Laptop; so as to bind the complainant to the terms and conditions of the warranty.  No such evidence has come forward from the side of O.P No.3 in this aspect.  As such, this Commission is forced to arrive at a irresistible conclusion that when the defect as noticed in the Laptop of the complainant was not repaired even though it was within the warranty period and by asking charges for the damaged part which was not within the knowledge of the complainant; this Commission finds that there was deficiency in service on the part of O.P No.3 and even also O.P No.1 who tries to escape that his job is over after the sale of the Laptop.  This issue is answered accordingly.

Issue No.1 & 2.

            When the Laptop purchased by the complainant was having defect within the warranty period which were not repaired, the complainant had a definite case and the case filed by him is maintainable.  As it is noticed that the case has been filed on 5.10.20 and the Laptop had developed defect which was inspected by the technical expert of the O.Ps on 14.8.20 and 22.8.20, the O.Ps had closed the service request of the complainant.  Thus, it can never be said that the case is barred by law of limitation.  Accordingly, these two issues are answered.

Issue No.4.

            From the above discussions, it is noticed that the complainant is entitled to the relief to a certain extent.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against O.Ps 1 & 3 and exparte against O.P No.2.  All the O.Ps are found jointly and severally liable here in this case.  The O.Ps are thus directed to repair the defect of the Laptop in question belonging to the complainant within a month hence without charging anything for the same.  The O.Ps are also directed to pay a sum of Rs.10,000/- towards mental agony of the complainant alongwith a sum of Rs.5000/- towards litigation cost to the complainant within a month hence. 

Order pronounced in the open court on the 4^th   day of July,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                     

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                               Sri Sibananda Mohanty

                                                                                                                                           Member.