IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 24 th day of November, 2021.
Filed on 20-09-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.237/2019
between
Complainant:- Opposite parties:-
Sri.Niyas 1. Hewlett Packard India(HP)
S/o Muhammad Kunju Head Office 24, Salarpuria
Raihan Family Shop Area, Adugodi, Hosur Road
Town Hall Jn. Haripad Banglore-560030
Haripad.P.O (Adv.Sri. V. Vijayakumar)
Residing at Mubarak House 2. The Manager
Ayikkad South, Cheppad.P.O Savex Technologies
Alappuzha District 39/4208-A &B,
Kerala-690514 Prakash Bhavan
(Adv. Sri. T.A.Venugopal) Ravipuram Road, Ernakulam
Kochi, Kerala 682016
(Party in person)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant purchased a computer Model HP Slim line Desktop 250 IP2020 IL from the 1st opposite party HP Company. It was purchased online on 26/7/2017. The 2nd opposite party who is the agent of the 1st opposite party brought the computer to the complainant’s shop. The 1st opposite party delivered the computer as per two invoices. Invoice No.COCRIG1718101092 dtd. 11/8/2017 for Rs. 23,878/- and Invoice No.SECRIGI 718101935 dtd 10/8/2017 for Rs. 5,866/-. The company had given one year warranty and two years extended warranty.
2. Complainant is running a shop by name Raihan Family shop at Town hall Jn., Harippad, Alappuzha. The above said product was purchased for using in the shop. After installation of the system 5 times the mother board got damaged and it was timely informed to the opposite parties and it was replaced. Opposite parties did not take any steps either to correct or supply a new product instead of the damaged product. Complainant had sustained mental agony and sufferings because of the non functioning of the system. The business of the complainant is effected and it is causing financial loss and hardship to the complainant. An amount of Rs.31,004/- was collected from the complainant. Complainant is sustaining a loss of Rs. 25,000/- per month due to the non functioning of the system. Complainant is entitled to get the system replaced and compensation for loss and suffering. Hence the complaint is filed for giving a direction to the opposite party to replace the computer with all accessories. Complainant is also claiming an amount of Rs.3 lakhs as compensation due to nonfunctioning of the system.
3.. 1st opposite party filed a version mainly contenting as follows:-
This opposite party is a global renowned manufacturer of various types of computers, printers , laptops, scanners etc. The products that are manufactured and marketed by this opposite party are approved by the appropriate authority which is highest body to certify the IT products. The relation between opposite parties are principle to principle basis. Opposite party is having well supported excellent authorized channel partners and service centers.
4. The averments made in the complaint are vague and baseless. Without relying an any expert report by a recognized and notified laboratory it cannot be said that the computer is a defective one. It is the duty of the complainant to prove the defect if any through an experts report. Computer purchased by the complainant is a well established product in the market over a period of years. All the products manufactured by the opposite party are put through stringent control system, quality checks and tests by the quality department. The products are certified by the international standard for quality systems. The warranty benefits provided by this opposite party is for a defined period. On receipt of the complaint the service team of the opposite party had submitted the computer for diagnosis and resolved the issues. The mother board and SNPS were replaced under warranty. The working of the computer depends upon various factors such as proper electrical supply, proper handling of the system and the software installed on the system. There are no known issues manufacturing defect or technical default in the computer. Complainant has no cause of action against this opposite party and the compensation claimed is exorbitant without any justification and hence the complaint may be dismissed with cost.
5. 2nd opposite party filed a version mainly contenting as follows:-
This opposite party is the authorized dealer/ distributors of HP products. After installation of the system the mother board got damaged 5 times and it was replaced under warranty. This opposite party is only the dealers and distributors of HP products. Complainant is not entitled to replace the system and hence the complaint may be dismissed.
6. On the above pleading following points raised for consideration:-
1. Whether there was deficiency of service from the part of opposite parties as alleged.?
2. Whether the complainant is entitled to get an order to replace the computer with all accessories?
3. Whether the complainant is entitled to realize an amount of Rs. 3,00,000/- as compensation due to the non functioning of the system?
4. Reliefs and costs?
7. Evidence in this case consists of the oral evidence of PW1 and 2 and Exts. A1 to A14 from the side of the complainant. Opposite parties have not adduced any evidence either oral or documentary. Commission Report was marked as C1.
8. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A14.
9. PW2 was the expert commissioner in this case. He inspected the computer and prepared Ext.C1 report. It was found that the Mother Board was changed 7 times and it is a manufacturing defect. There was no current fluctuation and other computers were functioning connected to the same plug.
10. PW1, complainant as per Ext.A1 ordered an HP slimline Desk top computer on 26/1/2017 for an amount of Rs. 31,004/-. As per Ext.A2 and Ext.A3 tax invoices it was delivered on 10/8/2017 and 11/8/2017. It was purchased for the use in his shop. Product had a warranty of one year and had an extended warranty of two years that is up to 20/6/2020. After about 4 months of purchase problems arose in the functioning of the computer and the matter was informed to the opposite parties. Ext.A4 is the Service Call Report dtd. 15/12/2017 to show that service was to be done within 5 months of purchase. Ext.A5 dtd. 4/1/2018, Ext.A6 dtd.21/5/2018, Ext.A7 dtd. 27/7/2018, Ext A8 dtd. 27/8/2018, Ext.A9 dtd. 25/9/2018 and Ext.A10 dtd. 11/12/2018 will show that the product became defective so many times and service personal had to visit the shop to rectify the mistake. According to PW1 the Mother Board was changed 7 times and still the computer is not functioning properly. Ext.A11 Legal notice was sent on 30/7/2019 to both the opposite parties requesting to replace the system and seeking compensation. Inspite of receipt of the notice by Ext.A13 and A14 ADcards there was not action from the part of opposite parties and hence finally he filed the complaint on 20/9/2019. Opposite parties entered appearance and filed details versions. 1st opposite party contented that there products are globally acclaimed for its class and quality and it is in use worldwide. 2nd opposite party filed version contenting that the product is manufactured by 1st opposite party and they are only suppliers. Complainant got examined as PW1 and Ext.A1 to A14 were marked. As per the request of the complainant an expert was appointed to inspect the product. Accordingly PW2 inspected the product and filed Ext.C1 report.
11. On a perusal of the evidence of PW1 it is seen that he was not cross examined by the learned counsel appearing for the 1st opposite party. During cross examination by the learned counsel of the 2nd opposite party PW1 stated that he has no complaints against 2nd opposite party. PW2 the Commissioner is a BTech graduate in Computer Science and is having 14 years experience. Now he is working at Mrecedes Benz, Banglore and from the oral evidence of PW2 it is seen that the Mother Board was changed 7 times and so he concluded that product is having manufacturing defect. There was another computer which was connected to the same plug and it was working in the same UPS. So it is crystal clear that the malfunctioning was not due to any electrical complaint. PW2 was not even able to switch on the computer. So from the evidence of PW1 and 2 it is pellucid that the computer purchased by PW1 became faulty within 5 months of purchase. Ext.A4 to A10 will show that technicians visited the shop for service 7 times from 15/12/2017 to 11/12/2018. In the version filed by 1st opposite party it is contented that there are no known issues at manufacturing defects or technical fault in the computer and the computer is working fine. However though such a detailed version running into several pages was filed 1st opposite party never cared to enter the witness box to prove their case on oath. As stated earlier even PW1 was not cross examined by the learned counsel appearing for the 1st opposite party. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
12. From the evidence on record including Ext.C1 commission report it can be seen that the computer supplied to PW1 by the 1st opposite party is having manufacturing defect. The computer is started malfunctioning within 5 months of purchase and the evidence on records shows that the mother board was changed 7 times. The learned counsel appearing for the complainant relied upon the decisions of various State Consumer Disputes Redressal Commissions such as Managing Director, Genetis Infotech Pvt. Ltd. Vs. Amit kumar Chakraborty in SC Case No. 24/FA/08 decided on 24/11/2008 SCDRC West Bengal), M/s IBM India Pvt. Ltd Vs. Mrs. S. Vaidehi.C.Murali & Anr. decided on 11/11/ 2011 in appeal No 1135 of 2011 SCDRC,Karnataka M/s Surana Computers Vs. K. Srinivasa Chary decided on 25/3/2013 in FA 906 of 2012 (State Consumer Disputes Redressal Commission Hyderabad) and pointed out that in all these cases The State Consumer Disputes Redressal Commissions of various states passed similar orders by which the opposite party was directed to replace the computer and awarded compensation. The learned counsel appearing for the complainant also relied upon the decision of the Hon’ble Kerala State Consumer Disputes Redressal Commission in M/s Wintech Infosys Vs. Mary Paul decided on 30/12/2013 in appeal No. 606/12. In said case also “within 6 months the computer showed some defects which were repaired. The mother board of the computer was repaired several times and the opposite party was directed to refund the price of the computer to the complainant. Per contra the learned counsel appearing for the 1st opposite party relied upon the ruling of Tripura State Consumer Disputes Redressal Commission in Rahul Banik Vs. Dell India Pvt. Ltd 2016(3) CPJ 126. In the said case it was held that
“Plea that laptop of complainant suffers from manufacturing defect - It requires to be established by adducing cogent and material evidence by complainant – That onus of proof cannot be shifted to shoulder of O.P.No.1”
13. Here in this case as per the request of PW1, PW2 an expert was appointed to inspect the computer. He is a qualified engineer having 14 years experience and he is now working at Mercedes Benz, Banglore. After inspection he filed Ext.C1 report stating that the mother board was changed 7 times and he was unable to switch on the computer. He concluded that the computer had manufacturing defect. In said circumstances the ruling relied upon by the learned counsel appearing for the 1st opposite party has no relevance in this case. Per contra the ruling relied upon by the learned counsel appearing for the complainant unanimously decided that in similar conditions complainant is entitled to replace the product. As stated earlier the computer started mal functioning within 5 months of the purchase. This clearly amounts to deficiency of service.
14. Complainant is claiming an amount of Rs. 3,00,000/- on a contention that he sustained loss of about Rs. 25,000/- per month from his shop due to mal functioning of the system . Except the interested testimony of PW1 no other evidence is available to prove the loss sustained by him. Considering the entire circumstances and evidence in this case we are of the considered view that complainant is entitled for compensation and we are limiting the same to Rs.20,000/-. These points are found accordingly.
15. Point No.4:-
In the result complaint is allowed in part.
A) 1st opposite party is directed to replace the computer of PW1 with all accessories.
B) Complainant is allowed to realize an amount of Rs. 20,000/-(Rupees Twenty thousand only) as compensation from the 1st opposite party.
C) Complainant is allowed to realize an amount of Rs. 3000/-(Rupees Three thousand only) as cost from the 1st opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 24th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt.Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Niyas Muhammed (Complainant)
PW2 - Reyas Mohammed Ismail(Expert)
Ext.A1 - Original Order dtd. 26/7/2017
Ext.A2 - Tax Invoice dtd. 10/8/2017.
Ext.A3 - Tax Invoice dtd. 11/8/2017
Ext.A4 - Service Call Report dtd. 15/12/2017
Ext.A5 - Service Call Report dtd. 4/1/2019
Ext.A6 - Service Call Report dtd. 21/5/2018
Ext.A7 - Service Call Report dtd. 27/7/2018
Ext.A8 - Service Call Report dtd.27/8/2018
Ext.A9 - Service Call Report dtd. 25/9/2018
Ext.10 - Service Call Report dtd. 11/12/2018
Ext.A11 - Copy of Legal Notice dtd. 30/7/2019
Ext.A12 - Postal Receipt
Ext.A13 - Acknowledgment Card
Ext.A14 - Acknowledgement Card
Ext.C1 - Expert Report
Evidence of the opposite parties:- Nil
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
