Complainant Sewa Bharti has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties either to replace the defective 4 LED’s or to return the money. Opposite parties be further directed to pay Rs.50,000/- compensation on account of mental agony and harassment alongwith Rs.20,000/- as litigation expenses,, in the interest of justice.
2. The case of the complainant in brief is that Sewa Bharti Gurdaspur is a NGO committed for the service of poor and needy society Vis: Vis. They were providing education to the residence of slum areas by way of opening Bal Sanskar Kender (Free Coaching Classes), Sewing Centers for making ladies self dependents, providing medical facilities, Beauty Parlor, Dispensary, Ambulance Service (No profit no loss basis), Mortuary Freezer, Water Cooler and above all a Computer Center for imparting education to the weaker and down trodden students of society which is situated in Krishna Mandir, Mandi, Gurdaspur. For the installation of Computer Center, SBI Gurdaspur has given a grant for establishing a modern fully equipped Computer Center. After verification from the market, they proceed to purchased nine personal computers alongwith LED’s and other accessories from “Computer Solution, HardoChhani Road, Gurdaspur” and made a payment of Rs.3,38,800/- against Bill No.4763 dated 10th January, 2016. They have next pleaded that during the month of July, 2016 2 LED’s started giving problems as some dot spots appeared on the screen and matter was brought into the knowledge of Supplier who is turn reported the matter to the service centre of the company in the name and style of “Sysnet Global Technologies Pvt.Ltd., Amritsar” and their representative visited his Computer Centre on 21.11.2016. In the meantime two more LED’s got same problem. In all 4 LED’s met the same fate and as a result of Technical fault in manufacturing. The Supplier took the case with H.P. Authority, who in turn rejected the claim for replacement lodged by the supplier vide dated 29.11.2016 from Batish Alok. Since out of Nine LED’s, four LED’s has been out of order due to poor quality of stocks supplied by the supplier i.e. Computer Solutions in their own vested interest and malafide intentions which has hampered the studies of poor students who are to complete their one year course besides harassment forced by him. He requested the opposite parties to either replace the defective 4 LED’s or to return the money against the defective 4 LED’s, but the opposite parties did not paid any heed to his request. Thus there is deficiency in service on the part of the opposite parties. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint filed by the complainant is an abuse of process of law and is not maintainable as the complainant has approached this Hon’ble Forum by suppressing the material facts; the complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act; the complainant has filed this baseless and frivolous complaint; the warranty benefit provided by the opposite party on the said LED’s is for a defined period and opposite party has taken certain preliminary objections. On merits, it was submitted that the owner of the laptop i.e. the complainant is advised to follow certain guidelines in the user’s manual for smooth and maximum performance of the LED’s but the complainant had failed and neglected to follow the guidelines/procure given in the user manual, as recommended for smooth and better performance of the laptop in question at optimum cost viz correct operating procedures- do’s and don’ts for maintenance and performance of the LED’s. The opposite party relies on the relevant terms and conditions of warranty of the laptop, limitations, user manual and craves leave to refer the relevant extracts of the terms and conditions, limitations, user manual at the time of hearing, if required. Further, as per the instructions, given in the user’s manual, which amounts to agreed terms of contract. In the present case, there were instances of maintenance faults and operational faults noticed by the opposite party when the said LED’s was reported for the display issues, the subject LED’s in question was mishandled and reported to the opposite party’s service centre for unintentional/physical damage caused due liquid bleed/spill, which is considered to be customer induced damage and not covered under the warranty policy of the company, that the damage is due to an external element and not a technical fault, the same is mentioned in the CSO (service call reports) and the mails which are on the file of the Hon’b le Court. Other pleading are not related to this case and need not be mentioned. They lastly prayed that the complaint may be dismissed with costs.
4. Opposite party no.5 appeared and filed its written reply taking the preliminary objections that the present complaint is not maintainable and there is no deficiency in service on the part of the opposite party. On merits, it was denied that due to poor quality of stocks supplied by the supplier i.e. Computer Solutions in their own vested interest and malafide intentions which have hampered the studies of poor students. When opposite party received the complaint regarding the defect in LEDs of the complainant, he put the matter before the opposite party no.1 and provided two new LEDs as stand by immediately. The opposite party no.1 referred the case to opposite party no.3. The opposite party is a dealer. As per the terms and conditions of the warranty the liability of the opposite party no.1 is to remove or replace the defective LEDs. Hence, there is no deficiency in service on the part of the opposite party. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
5. Notice issued to the opposite parties no.2 to 4 have not been received back. Case called several times but none had come present on their behalf. Hence, opposite parties no.2 to 4 were proceeded exparte vide order dated 3.3.2017.
6. Sh.Ashok Kumar Mahajan President of Sewa Bharti Gurdaspur tendered into evidence his own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C12 and closed the evidence.
7. Counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Rahamatulla S K Ex.OP-P1/1, alongwith other documents Ex.OP1/2 to Ex.OP-1/9 and closed the evidence.
8. Chaman Lal authorized signatory opposite party no.5 tendered into evidence his own affidavit Ex.OP-5/1 alongwith other documents Ex.OP-5/2 to Ex.OP-5/4 and closed the evidence.
9. We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking the due judicial-notice of the titled OP2 to OP4 vendors/service providers’ suo-moto absence/ intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post etc. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.
10. We find that the present dispute/complaint has arisen as a result of the alleged ‘supply’ and subsequent ‘refusal’ to repair/replace/refund of 4 nos of defective LEDs to the complainant who are an NGO and had purchased the computer equipment for imparting training to the poor-students on no-profit/ no-loss basis.
11. We find that the 4 nos. of HP make LEDs (out of 9 nos. purchased) had developed spots on the screens and thus warranted exchange/replacement etc as these were beyond repairs etc but the OPs refused to oblige stating that the ‘defect’ shall not be covered under the available product-warranty. The complainant has successfully proved its case i.e., the mal-function of 4 nos. of LEDs and the subsequent non-replacement etc vide the documents exhibited here as: affidavit Ex.Cw1/A & Ex.C1 to Ex.C12. The OP1 manufacturers and the OP5 vendor have desperately attempted (Ex.OP1/2 to Ex.OP1/9 and Ex.OP5/1 to Ex.OP5/5) to shake off/waive away their respective liability by alleging long and improper usage of equipment that somehow fails to convince us whereas the rest of the service providers OP2 to OP4 have preferred to shun the present proceedings. Presently, the appearing OPs have finally announced the mal-functioning defect(s) in the equipment as not ‘covered’ under the available warranty and that establishes unfair trade practices on their part raking them up for an adverse award in accordance with the currently applicable consumer laws. Thus, we are not prepared to accept the arbitrary plea of the titled opposite parties and hold them jointly, severally and co-extensively liable to an adverse statutory award along with the other opposite parties whose callous act and attitude has ill-caused the complainant to derive full benefits of its investment to the interest of the noble cause of imparting computer education to the poor ill-affording students.
12. In the light of all above, we partly allow the present complaint and thus ORDER the titled opposite parties to replace the 4 nos. of defective LEDs or refund their cost in full to the complainant besides to pay them a sum of Rs 10,000/- as cost and compensation. The compliance of the present award shall be the joint, several and co-extensive liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the exercise shall, by all means be completed/exhausted within 30 days of receipt of the copy of these orders otherwise they shall also be liable to pay accrued interest @ 9% PA from the date of the present orders till actually paid
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
December, 06 2017 Member
*MK*
