Orissa

Dhenkanal

CC/54/2016

Dusasan Sahoo - Complainant(s)

Versus

Hewlett Packard India Sales Pvt. Ltd. - Opp.Party(s)

24 Nov 2017

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                               C.C.Case No. 54 of 2016

Dusasan Sahoo, aged about 42 years

S/o late Kulamani sahoo,

At: Jagannath Bazar, PO/PS: Kamakhyanagar,

 Dist: Dhenkanal                                                                        …........Complainant

                                                                                Versus

1) Hewlett Packard India Sales Pvt. Ltd, 24 Salarpuria Arena,

     Hosur Main Road, Adugodi,

     Bangalore-560030 represented by its Managing Director

2) Future Retail Ltd, Plot no. A/B Sahid Nagar,

     Bhubaneswar-751007, represented through its proprietor

 3) Ensure Support Services (India) Ltd., Plot No.A/27,

     First Floor-Sahid Nagar,

     Bhubaneswar,751007, represented through its proprietor

4) Sysmate Global Technology Pvt. Ltd,

    Plot No. 507, 1^st Floor, Sahid Nagar,

    Bhubaneswar-751007                                                          …........Opp. Parties

Present: Sri Badal Bihari Pattanaik, President,

                 Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant:  A. Rout And Associates

                  For the Opp. Party No.1 Saroj Kumar Mohanty & Associates

                  For the Opp. Party No.3:  In person

                  For the Opp. Party No.2 & 4: Non appeared

Date of hearing : 14.11.2017

Date of order:  24.11.2017

 

 

 

                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President

                In the matter of an application U/s 12 of the Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service on the part of the Opp. Parties.

                1)  Very briefly, the case of the complainant stated are that he has purchased one HP Slate-7 model tabs from the O.P.No.2 on 12.7.2015 on payment of a sum of  Rs. 9,990/- and the O.P.No.1 is the manufacturer of the product.  The tab is warranted for a period of one year from the date of sale against manufacturing defects.   It is alleged that within a short period of 2 months from the date of purchase   white and black patches were found on the display. The complainant approached the O.P.No.3 who is the authorized service center under the Opp. Party No.1 for removal of defects.  The O.P.No.3 received the tab set from the complainant and replaced D. Panel, S. Board and charger port and after repair the O.P.No.3 claimed a sum of Rs. 3,586/- towards cost of repairing even within the period of warranty and the complainant under compelling situation paid the said amount.  It is further alleged that again after three months of the repair the same problem occurred for which the complainant approached the O.P.No.3 on 11.12.2015.  The O.P.No.3 replaced the BD system and returned the set free of cost.  After 20 days the same problem of display again occurred and the petitioner approached the O.P.No.3.  The O.P.No.3 again replaced the D. Panel, BD System and battery and even after replacement of all these parts the tab did not function properly and became dead for which the complainant approached the O.P.No.2 for the frequent defects occurred who advised to approach the O.P.No.4.  On contract the O.P.No.4 he retained the set for a period of one month and returned the set on 21.5.2016 without removing the defects.  Thereafter the complainant approached the O.P.No.2 for replacement of the tab set or to refund the price paid for it.  Despite several attempts the defects could not be removed since the product is having inherent manufacturing defect. Therefore, the complainant has come up before this Forum seeking for a direction to the Opp. Parties to replace the hand set with  a new defect free one or to refund the amount of Rs. 9,990/- with interest @ 18% per annum from the date of purchase till its refund.  Besides, the complainant prays to direct the O.P.No.3 to refund a sum of Rs. 3,586/- to the petitioner with interest @ 24% per annum from the date of payment till its actual refund.  Besides, the complainant claims compensation and cost of the litigation of Rs. 40,000/-.  The contents of the petition are supported by affidavit.

                2) The Opp. Parties No.1 and 3 appeared and filed their written version separately.  Despite service of notice the O.P.No.2 & 4 neither appeared nor filed any written version.  It is in the version of the O.P.No.1 that   he is the manufacturer of the product.  All the allegations of the complainant are denied.  The complaint filed by the complainant is an abuse of process of law and is not maintainable for suppression of material facts.  The allegation of inherent manufacturing defects in the tab are baseless in absence of any expert report from a recognized and notified laboratory.  The complaint does not fall within the definition of consumer dispute. There is no manufacturing defect nor there any deficiency in service on the part of the Opp. Party.  The products manufactured by the Opp. Party No.1 are put through stringent control systems, quality checks and tests by the country quality department before its dispatch to the market.  Without having any expert opinion the allegation of inherent manufacturing defect is not tenable.    It is admitted that the tab was having one year warranty from the date of purchase and on the date of complaint it was out of warranty period.  The service team of the Opp. Party on inspection learnt that the defects caused due to the damage to the tablet and same was not covered under the HP standard warranty for which the complainant is liable to pay the charges.  The complainant reported on 11.12.2015 and 29.4.2016 which were attended promptly and the service was rendered under the warranty and parts were replaced free of costs and the tablet was kept under observation and on confirmation the tab is working fine as per specifications and delivered on 21.5.2016.  It is further stated that as and when the complainant reported the tab for issues, the service team of the Opp. Party promptly attended and resolved issues after repair and replacement of parts.  As per the terms and conditions of the warranty, the Opp. Party is only to repair the tab and not to replace the same or to refund the costs as claimed by the complainant.   It is further stated that this Forum has no jurisdiction to adjudicate upon the dispute. The Opp. Party No.1 has not committed any deficiency in service nor there any unfair trade practice for which   the Opp. Party No.1 shall be liable. It is admitted that the complainant on 12.7.2015 has purchased H.P. Slate-7 Model tab on payment of Rs. 9,900/-.   There is no cause of action to file the case.  The service center of the Opp. Party has attended to the calls logged and also resolved the issues by carrying out the necessary repair and replacing the required parts as per the warranty obligations.  The   tablet is covered with repair warranty, even now the Opp. Party is ready and willing to resolve the issues if any in the tablet as per the terms of the warranty.  Accordingly, it is pleaded to dismiss the complaint.  The contents of the written version are supported by affidavit.

                3) The Opp. Party No.3 in its version stated that the case is not maintainable and this Forum lacks territorial jurisdiction to adjudicate the case.   The O.P.No.3 admits that he is the authorized service providers for the products manufactured and marketed by 1^st Opp. Party.   The scope of operations of the O.P.No.3 is to perform repair services as defined by the manufacturer without any consideration from the customers during warranty period.  If there is any physical damage found in the product or if the warranty has got expired, the service center  O.P.No.3 provides repair service to the HP Products subject to customer bear the spare and repairing cost and provide service as confirmed by the manufacturer depending on the condition of the product, subject to product fulfilling the manufacturer’s warranty terms and conditions.  The warranty for the Tab is provided only by the manufacturer and the service provider has no role to play.  The O.P.No.3 also stated that he is not aware of the purchase transaction.  It is admitted that the complainant approached the O.P.No.3 complaining of ‘Display issue’ for three times.  At the first instance the O.P.No.3 replaced D Panel, S. Board and Charger Port of the Tab without any consideration and revamped the Tab in good working condition.  At the second instance BD system of Tab was required to be replaced and the same was replaced without any consideration.  At the third instance Battery port, BD system and D Panel of Tab were required to be replaced.  The O.P.No.3 replaced the same without any consideration.  Thereafter the complainant has not approached the service center of the O.P.No.3 for any sort of service instead he approached the O.P.No.4.  Therefore, it is pleaded that there is no deficiency in service.   The receipt of Rs. 3,586/- by the O.P.No.3 from the complainant is denied.  Whenever the complainant approached for any issue of the Tab, the Opp. Party No.3 had rendered the best service to him and there is no deficiency in service for which the case is liable to be dismissed.

4)            On the aforesaid pleadings of the respective parties following issues are framed for determination.

                1) Whether the complainant is a consumer?

                2) Whether the complaint is maintainable?

                3) Whether the Opp. Parties are deficient in rendering service?

                4) To what relief, if any, the complainant is entitled?

5) Issue No.1

                In order to substantiate the stands taken by the complainant certain documents are filed.  The complainant has filed Xerox copy of Tax invoice dated 12.7.2015, service call report dated 16.9.2015,   11.12.15, 5.1.2016 , 5.6.2016 and dated 23.4.2016, affidavit evidence of the petitioner,  affidavit evidence of one Sanjeev Kumar Behera.  The Opp. Parties have filed certain case laws in support of their stands.  It is not disputed by the Opp. Parties that the complainant has purchased the HP Brand Tabs from the Opp. Party No.2 who is the authorized dealer under the Opp. Party No.1.  It is also an admitted fact that the Opp. Party No.1 is the manufacturer of the impugned Tab which was purchased by the complainant on 12.7.2015 on payment of consideration of Rs. 9,900/-.  The Tax invoice dated 12.7.2015 discloses that the   complainant has purchased HP Slate-7 on payment of cost of Rs. 9990/-.  Therefore, in our considered opinion that since the complainant has purchased goods for his personal use on payment of consideration, he is a consumer.

6) Issue No.2

                The Opp. Party No.1 and 3 have raised objection in their written version so also the learned counsel appearing on behalf of the Opp. Party No.1 & 3 vehemently urged before us that the case is not maintainable before this Forum as this Forum has no jurisdiction under Section 11 of the Consumer Protection Act to entertain, try and adjudicate the present complaint.  It is further pleaded on behalf of the Opp. Parties that neither of the Opp. Parties are residing within the territorial jurisdiction or carries on business, or has any branch office or personally works for gain.   The learned counsel appearing on behalf of the complainant argued before us that the present dispute is maintainable before this Forum as there is clear deficiency in service on the part of the Opp. Parties and even if the Opp. Parties do not reside within the territorial jurisdiction, but the cause of action for filing of the case arose within the territorial jurisdiction of this Forum.  Therefore, the present dispute falls U/s 11 (2) ( c ) of the Consumer Protection Act as the   complainant has purchased the tab for his personal use. The defects time and again occurred at Kamakhyanagar where the complainant is residing which comes   within the territorial jurisdiction of Dhenkanal District.  It is also not disputed that the complainant is a permanent inhabitant of Kamakhyanagar and after purchase of the impugned Tab he used it at his native place at Kamakhyanagar.  Further we find that the cause of filing of the case is defect in goods purchased by the complainant.  Since the cause of action for filing of the case is defect in goods which developed at Kamakhyanagar the present dispute in our opinion comes under Section 11 (2) ( c ) of the Consumer Protection Act, 1986 and this Forum has jurisdiction  to  adjudicate upon the dispute and thus the case is maintainable.

6) Issue No. 3 & 4

                 The Opp. Parties No.1 in his written version   categorically pleaded that   the allegations of the complainant are vague, baseless   as regards to inherent manufacturing defects in the tab in question without relying on any expert report from a recognized and notified laboratory under Section 13 (1) of the Consumer Protection Act, 1986.  It is further pleaded that the complainant has purchased the Tab in question after being fully satisfied with the condition and its performance. The products manufactured by the O.P.No.1 are marketed only after   thorough stringent control systems, quality checks and tests and the products of the O.P No.1 are certified by the international standard for quality systems.   Therefore, in absence of any expert opinion in the form of evidence from   a notified laboratory to prove that the tab suffers from the problems as alleged or to establish any manufacturing defect in the tab in question no deficiency in service or defect in goods cannot be ascertained.  It is further argued on behalf of the Opp. Party No.1 that   the allegations of manufacturing defects in the Tab in absence of an expert report miserably fails and the instant complaint deserves to be dismissed.   On the other hand the learned counsel appearing on behalf of the complainant argued before us that since the Opp. Party No.3 who is the authorized service center despite several efforts and attempts and replacement of several parts    could not remove the defects, the complainant could not get any utility from the Tab and suffered from mental agony.  As the Tab could not brought to its original order despite several attempts and   replacement of certain spare parts during the period of warranty  the same needs to be replaced and there is no need of any expert opinion in the instant case as argued by the Opp. Party No.1.  It is further pleaded on behalf of the complainant that the Opp. Party No.1 & 3  categorically  have admitted that the Tab in question is having defects and  more particularly the Opp. Party No.3 in his written version categorically admitted that  the complainant had approached the O.P.No.3  Service Center at Bhubaneswar complaining of Display issue for three times.  On perusal of the written version of the Opp. Party No.3 at paragraphs-6 we find that the Service Center of the O.P.No.3   has replaced certain spare parts in each and every complaint.    It is further admitted that during service the Opp. Party No.3 has replaced D Panel, S. Board and Charger Port at the first instance.  Again on the second instance BD system of the Tab was replaced. Again also on the third instance Battery port, BD system and D Panel of Tab were replaced.  The service call report dated 16.9.2015, 11.10.15, 5.1.16 and 23.4.2016 also discloses that the above parts were replaced and jobs were carried on by the Opp. Party No.3.  Now taking into consideration of the admitted factual aspects of the case as discussed above, we are of the opinion that the   impugned Tab purchased by the complainant is having defects and despite replacement of certain spare parts repeatedly and several attempts taken by the authorized service center the defects could not be removed.  As the defects could not be removed despite several attempts and replacement of spare parts, it needs to be replaced by a new defect free one Tab of the same brand at the same cost.  In this regard we are fortified by a decision of the Hon’ble State Consumer Disputes Redressal Commission, Odisha, Cuttack reported in 2002(1) CPR page -124 in case of Bajaj Auto Ltd, and anr vrs. A. Nageswar Rao and Anr wherein it has been held that “Where the manufacturer/authorized dealer failed to rectify defects during warranty period, same amounts to deficiency in service.    Further we are fortified by another decision of the Hon’ble National Consumer Disputes Redressal Commission reported in 2006 (1) CPR-page 173  in case of Ashoke Khan versus Abdul Karim wherein it has been held that liability of dealer/Agent and manufacturer will be joint and several U/s 226 of Contract Act, 1872.  Therefore, after taking into consideration of the factual aspects, documents and the decisions referred to above, we are of the opinion that the Opp. Parties are in deficiency in service by not removing the defects during the period of warranty and thus they are liable to refund the cost of the hand set or to replace a new hand set to the complainant at the same cost.  As regards the allegation of the complainant for payment of Rs. 3,586/- to the O.P.No.2 towards repair of the set is not supported by any document.  The complainant has not filed any documents in that support.   The affidavit evidence filed by one Sanjeev Kumar Behera to support the case of the petitioner  discloses that  at paragraphs -4 he has stated that the service center advised the petitioner to come after 4 hours and after reaching the service center after the stipulated period a sum of Rs. 3,586/- was claimed by the service center.  At paragraphs-6 it is stated that, accordingly a sum of Rs. 5,386/- was deposited in the cash counter and the fact was mentioned in the service call report and after showing it in the delivery counter the Tab set was handed to petitioner. The figures mentioned in both the paragraphs are different which is not acceptable.  On the other hand the Opp. Parties categorically pleaded that they have not demanded any amount nor the complainant has paid any amount.  As the complainant failed to prove the payment of Rs. 3,586/- towards cost of repair this claims is not tenable.   In view of the above discussions, the complainant is entitled to get relief.  Hence ordered.

                                                                              ORDER

                The complaint is allowed on contest against the O.P.No.1 & 3 and exparte as against O.P.No.2 & 4 in the light of the observations made in the preceding paragraphs.  The Opp. Parties are directed to give  a new defect free Tab at the same cost to the complainant in exchange of the defective one    or  in alternative refund the cost of the Tab of Rs. 9,990/- (Nine thousand Nine hundred ninety) only to the complainant along with interest @ 9% per annum from the date of payment till its refund.  Besides, the Opp. Parties are directed to pay cost of the litigation of Rs. 1,000/- (Rupees one thousand) only to the complainant. The O.Ps are jointly and severally liable to comply with this order within a period of one month from the date of receipt of this order.

 

  (Miss Bijayalaxmi Satapathy)                         (Badal Bihari Pattanaik)

                         Member                                               President