BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th of October 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.60/2010
(Admitted on 15.02.2010)
Mr.Manikanta Prasad,
So. Harishchandra Acharya,
Aged about 24 years,
Harsha Rathna House,
Kokrady Post and Village,
Belthangady Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sathish K.)
VERSUS
1. HCL Info Systems,
Shilak Bhavan,
Opp. Mahaveer Jain,
Medical College,
Bangalore 560 052.
2. Belwil Softchip Computers,
Amruthothsava Building,
Bunts Hostel Road,
Mangalore – 575 003.
(Authorized dealers of Opposite Party No.1).
3. Compu Tracks Services,
Shree Arcade, D.No.16-1-29/6,
Balmatta – Kankanady Road,
Mangalore – 575 002.
(Authorized service centre of
Opposite Party No.1). ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1 & 3: Sri.K.Balaraj Rai).
(Advocate for Opposite Party No.2: Sri.D.A.L. Andrade).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is a businessman at Mangalore and he has purchased HCL Laptop model No.G.28 (Sl. No.9084AX 117402) under 12 months warranty on 20.10.2008 from the Opposite Party No.2 i.e., the authorized dealer of the Opposite Party No.1 for consideration of Rs.24,336/-. The Complainant submits that, after short span of time from the date of purchase, the aforesaid Laptop started to troubling the Complainant and giving problem frequently. Thereafter the Complainant took the Laptop many times for repair work before the Opposite Party No.3 who is the authorized service centre of Opposite Party No.1. The problem in the said Laptop not stopped and Opposite Party No.3 could not rectify the problem. The Complainant has every time visited the Opposite Party No.3 for repair of the battery back-up and display problem of the defective Laptop but after getting serviced, the problem of the Laptop remains continued within few days. The Complainant addressed E-mail dated 08.10.2009, 17.12.2009 and 19.12.2009 calling upon the Opposite Parties to set-right the defects or replacement of the aforesaid defective Laptop but Opposite Party No.3 after considering the letter issued by the Complainant extended warranty for three months till 18.01.2010 and suggested the Complainant to bring the Laptop for avail free service and assured that if any defects shown in the Laptop they are promised to replace the same. Contrary to the above assurance the problem of the Laptop was remain continued but the Opposite Party No.3 failed to rectify the same. When the matter stood thus, Complainant finally issued a letter dated 26.12.2009 through e-mail to the Opposite Party No.1 and 3 for replacement of the defective laptop but the Opposite Parties not complied the same. Hence got no efficacious remedy the Complainant approached this Forum and filed the above complaint under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party No.1 for replacement of defective HCL G28 Laptop to the Complainant, directing the Opposite Parties to pay the Complainant a sum of Rs.75,000/- towards the loss suffered and sustained by the Complainant due to non-availability of the defective laptop and other incidental losses and claimed Rs.20,000/- towards repair charges, expenditures and cost of the complaint.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 stated that, Complainant is not a consumer as defined in Consumer Protection Act and as per clause 18 of the warranty, dispute between the Complainant and Opposite Party should be referred to sole arbitrator to be appointed by HCL and provisions of Arbitration and Conciliation Act 1996 is applicable. The Courts in New Delhi alone will have jurisdiction and this Forum has got no jurisdiction.
This Opposite Party denied the manufacturing defect as alleged in the complaint. It is stated that, Complainant approached Opposite Party No.3 only on 04.06.2009 alleging some minor complaints. On 04.06.2009 the battery was replaced by Opposite Party No.3 and again on 29.09.2009 and 03.12.2009 Complainant approached the Opposite Party No.3 alleging display problem. On 03.12.2009 the laptop was repaired and it was in good condition and the same was acknowledged by the Complainant. It is stated that, the above said laptop was purchased on 20.10.2008 and the warranty period lapses on 20.10.2009. For any defects after the warranty period this Opposite Party is not liable. It is stated that, the claims made in E-mail dated 26.12.2009 is time barred as there was no warranty as on 26.12.2009. It is stated that, on verification of the laptop it has been noticed during repairs that the battery has not been discharged at regular intervals and the laptop was taking direct connection and battery was used on AC power, hence the battery was replaced and the Complainant was advised to discharge the battery in regular intervals. It is stated that, the Complainant came with one more complaint that the display was dull, for that purpose the parts were replaced and services rendered by the Opposite Party No.3 and contended that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.2 stated that, this Opposite Party is authorized dealer of HCL and other computers, laptops and accessories. It is sated that, Complainant purchased a laptop and it was in perfect working condition. This Opposite Party is not aware that after a short span of time the laptop stopped working and started trouble and also not aware the Complainant has taken the laptop to Opposite Party No.3. It is denied that, the laptop was a defective laptop and this Opposite Party is an unnecessary party to the proceedings and not liable to pay any compensation. The laptop sold by this Opposite Party is of Opposite Party No.1 who manufactures high class of reputed computer and laptops. It is submitted without prejudice that the Complainant himself might have misused the laptop or mishandled the same and contended that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.3 filed similar version of Opposite Party No.1 and contended that there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant is a consumer and this FORA has jurisdiction to entertain the complaint?
- Whether the Complainant proves that the Laptop purchased by him from the Opposite Party No.2 proved to be defective?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Manikanta Prasad (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. One Mr.S.S.Jina (RW1), working as Manager – Legal in Opposite Party No.1 Company, one Mr.Warren Fernandes (RW2) – Opposite Party No.2 and one Mr.Nemiraj (RW3) – Proprietor of Opposite Party No.3 filed counter affidavit and answered the interrogatories served on them. Both parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i):
The 1st plea taken by the Opposite Parties is that, the Complainant is not a consumer and this FORA has no jurisdiction to entertain the complaint. The dispute between the Complainant and the Opposite Parties should be referred to the Arbitrator, the Court in New Delhi alone will have jurisdiction. Admittedly the Laptop was purchased on 20.10.2008 from the Opposite Party No.2. The defects found within the warranty period and the laptop was used for self by the Complainant. When the goods purchased by the consumer is defective during the warranty period even if the purchase was for commercial purpose the complaint filed by the Complainant is maintainable and he is a consumer within the purview of Section 2(1)(d) of the C.P. Act
This point has been elaborated in the following judgment i.e., Gujarat State Consumer Disputes Redressal Commission, Ahmedabad: I (2006) CPJ 369: in Mahindra and Mahindra Limited and Another versus Morwal Brother Private Limited; held that:-
Consumer Protection Act, 1986 - Section 2(1)(d) – Consumer – Vehicle defective during warranty – Complainant consumer even if purchase was for commercial purpose – Deficiency in service proved – compensation granted with interest – cost awarded.
{Page 371 (Paras 5 to 7)}
Similarly in the given case the Complainant is a consumer and the complaint is maintainable.
As far as Arbitration is concerned, it is a settled position of law that the Section 3 of the C.P. Act is very clear that, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence the contentions raised by the Opposite Parties that this FORA has no jurisdiction only the Court in New Delhi alone will have jurisdiction is hereby rejected. Hence point No.(i) held in favour of the Complainant.
Point No.(ii) to (iv):
As far as defect is concerned, we have pointed out that, admittedly the Complainant purchased the HCL laptop model No.G.28 (Sl. No.9084AX 117402) under 12 months warranty on 20.10.2008 from the Opposite Party No.2 i.e., the authorized dealer of the Opposite Party No.1 for consideration of Rs.24,336/- (as per Ex C2).
Now the point in dispute between the parties are that, the Complainant submits that, after short span of time from the date of purchase, the aforesaid laptop started giving problem frequently i.e., display problem, battery back-up problem. For that, the Complainant took the laptop many times for repair work before the Opposite Party No.3 i.e., the authorized service centre of Opposite Party No.1 but the problem persists/continuous within few days after the repair. Thereafter the Complainant addressed e-mail to the Opposite Parties calling upon them to set-right the defects or replace of the aforesaid defective laptop and contended that the laptop is defective and not upto the standard and sought for refund of money or replacement of the laptop. Since the Opposite Parties not complied the demand made by the Complainant, the Complainant came up with this complaint.
On the contrary, all the Opposite Parties denied the manufacturing defect and Opposite Party No.1 and 3 who is the manufacturer and authorized service centre contended that, the alleged complaints are some minor complaints and on 04.06.2009 the battery was replaced and all the complaints of the Complainant were attended by the Opposite Parties and display problem also repaired and the laptop is in good condition and stated that, the claim made by the Complainant dated 26.12.2009 is time barred and Complainant cannot avail free repair facilities since there was no warranty as on 26.12.2009. Further contended that, the battery was replaced and some parts were also replaced on 03.12.2009 at free of cost and contended that there is no defect and deficiency.
In order to substantiate the case of the Complainant, filed evidence by way of affidavit and produced Ex C1 to C6. Opposite Parties also filed evidence by way of affidavits.
On scrutiny of the documents available on record, we find that, the Complainant purchased the disputed HCL laptop on 20.10.2008 by paying Rs.24,336/- to the Opposite Party No.2 who is an authorized dealer of HCL computers. The Ex C6 is the warranty card issued by the Opposite Party No.1 reveals that, the above said HCL laptop sold by the Opposite Party No.2 and manufactured by the Opposite Party No.1 has a warranty for 12 months from the date of installation or 13 months from the date of delivery whichever is earlier. Admittedly, the subject laptop was purchased on 20.10.2008. The admission in para No.4 of the version filed on behalf of the Opposite Party No.1 categorically admitted that, on 04.06.2009 the Complainant approached the service centre i.e., Opposite Party No.3 alleging some minor complaints and on 04.06.2009 the battery was replaced by Opposite Party No.3. Again on 29.09.2009 and 03.12.2009 the Complainant approached Opposite Party No.3 alleging display problem. On 03.12.2009 the display was dull, for that purpose the parts were replaced and the services were rendered. Apart from the above admission, we have perused the service report issued by the Opposite Party No.3 dated 04.06.2009 i.e., Ex C4, wherein, it is reported that, no back-up, battery problem and replaced the battery. Again on 29.09.2009 i.e., as per Ex C5, there was no display and battery problem, no back-up. On 12.11.2009 i.e., Ex C6, dim display and battery back-up low, replaced FL inverter and battery.
Apart from the above, we have gone through the e-mails between the parties, wherein, the e-mail dated 13.11.2009 issued by the Opposite Party No.3 i.e., the authorized service centre of the Opposite Party No.1 to the Complainant shows that, the laptop was repaired for FL inverter and battery backup problem and the same will be covered under three months repair warranty from the warranty ending date from 19.10.2009 to 18.01.2010. The above e-mail was not denied by the Opposite Party No.3 who is the authorized service centre of the Opposite Party No.1. Further the e-mails between the parties again confirmed that, the laptop purchased by the Complainant has display problem and other problems as stated supra. The above said problems were rectified by the Opposite Parties by taking minimum 15 days time to repair also not denied by the Opposite Parties. The e-mail correspondences and the service card produced by the Complainant clearly reveal that, the laptop purchased by the Complainant had a problem within the warranty period and the same has been continued thereafter. Under that circumstances, the Opposite Parties cannot take a contention that the laptop has no warranty and they are not responsible/liable. The above material evidence produced by the Complainant established that, the Laptop sold by the Opposite Party No.2 manufactured by the Opposite Party No.1 is not upto the quality and proved to be defective. Hence, the manufacturer as well as the dealer both are jointly and severally liable in this case.
Generally, if the goods have manufacturing defect is to be borne by the manufacturer. But that would not mean that the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customer directly. The Dealer having received the amount, undertaken free service and rectify the defects during warranty does not escape liability towards the manufacturing defect found in the goods during the warranty period. In the repetition, the contract is through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, in this case Opposite Party No.1 and 2 i.e., the manufacturer and dealer are jointly and severally liable for the defects found in the Laptop.
The Hon’ble National Commission reported in 2009 I CPJ (80) held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
Similarly, the above principles observed by the Hon’ble National Commission applicable to the case on hand.
In view of the above discussion, we hold that the Laptop sold by the Opposite Party No.2 is defective and not upto the standard. Therefore, the Opposite Party No.1 and 2 are jointly and severally directed to replace the defective HCL Laptop model No.G.28 (Sl.No.9084AX 117402) with a new Laptop with fresh warranty by taking back the same from the Complainant. And also pay Rs.5,000/- as compensation for deficiency of service and Rs.1,000/- as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
There is no deficiency on the part of the Opposite Party No.3 is proved. Hence complaint against Opposite Party No.3 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. The Opposite Party No.1 and 2 are hereby directed to replace the defective HCL Laptop model No.G.28 (Sl.No.9084AX 117402) with a new Laptop with fresh warranty by taking back the same from the Complainant. And also pay Rs.5,000/-(Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.3 is hereby dismissed.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 and 2 are hereby directed to pay interest at the rate of 9% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 14 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29th day of October 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Manikanta Prasad – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 08.10.2009, 20.10.2009, 13.11.2009, 17.11.2009, 17.12.2009, 18.12.2009, 19.12.2009, 21.12.2009 & 26.12.2009 – Email letters addressed by the Complainant to the Opposite Parties.
Ex C2 – 20.10.2008: Original bill issued by the Opposite Party No.2.
Ex C3 – 21.03.2009: Gate Pass/Delivery Challan issued by the Opposite Party No.3.
Ex C4 – 04.06.2009: Service call report issued by Opposite Party No.3.
Ex C5 – 29.09.2009: Delivery challan issued by Opposite Party No.3.
Ex C6 - : Copy of the warranty card issued by the Opposite Party No.1.
- 12.11.2009: Service call report issued by the Opposite Party No.3.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.S.S.Jina, working as Manager – Legal in Opposite Party No.1 Company.
RW2 – Mr.Warren Fernandes – Opposite Party No.2.
RW3 – Mr.Nemiraj – Proprietor of Opposite Party No.3.
Documents produced on behalf of the Opposite Parties:
Dated:29.10.2010 PRESIDENT
