ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in supplying defective laptop and also unfair trade practice in not repairing the said laptop properly and also not replacing the same with a new one and not refunding the cost of the product and for compensation of Rs.50,000/- for causing him mental harassment and inconvenience and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant purchased a laptop HP Pavilion X-360 14-inch FHD Touchscreen convertible laptop  though OP-2 manufactured by OP-1. The said laptop was delivered to him on 19.02.2021 and the same was opened on 20.02.2021. After 3 or 4 days of its use, started malfunctioning and was hanging frequently. There was problem in the laptop in respect of Microsoft word speech detection. The same was complained to the service center/customer care on 25.02.2021 wherein, they asked whether Cortona is working or not. Cartona is a top back feature like Alexa for Amazon. After checking it, it was informed that the same was not working. BIOS update was also performed. After that, Carona feature was also working but speech detection of WORD was not working. When the same was complained, it is stated the problem with Microsoft features. When he contact the customer care of Microsoft he could not contact them. The USB port located on the right side of the laptop was also not working.  When HP executive were contacted again, they told to update BIOS and the operating system. Inspite of it, the said problem was not solved and one person from  TVS electronics was deputed to know the problem. He informed that motherboard of the laptop need to be changed and further it was also informed that there is an unintentional damage to the USB port. They undertook to replace the same on a chargable basis for which he did not agree. 

3.     When he wanted to return the product for replacement, OP-2 the Amazon return window was informed to be closed. Though he made several attempt grievance redressed to OP.1 and 2, the same has not been done. The laptop was not at all damaged but it was not working properly and there was a motherboard problem and hence he requested for replacement / refund of the amount which OP did not oblige and hence there is deficiency in service, unfair trade practice and pray the commission to allow the complaint.

4.     Upon service of notice, OP 1 and 2 appeared before the commission and filed their separate version. In the version filed by OP.1 it is contended that the complaint is not maintainable either in law or on facts and filed on a baseless vague, mala fide intention on misconceived facts.  Laptop was purchased by the complainant and it is a well-established product in the market.  The product manufactured by OP-1 marketed only after product put in to strict quality control checks and after clearance only, they will be sold to the customers. The standard care and check have been conducted in respect of product sold to the complainant.  The staff are adequately trained to provide proper service to the customers and they have to fully comply with the warranties assurances and specification specified by the manufacturer.  The warranty is for a specific period and it is explicit and the terms and conditions are mentioned in it in unequivocal terms stating what purpose the same covers. 

5.     The laptop purchased by the complainant was also provided with warranty for one year from the date of purchase. The issues raised by the complainant was offered to be resolved by carrying repair or replacing the required parts as per the warranty terms and conditions whereas, complaint refused to the said offer and wanted refund of the cost of the laptop along with compensation and cost which is prima facie and unsustainable and therefore the complaint is not maintainable.  The laptop in question is a sophisticated electronic equipement with Minute parts and components and the working of the same depending on various facts such as proper electrical supply and the software installed in the system. Any mishandling the system or installing pirated software, would hamper the proper working of the system. Therefore if  any component is defective either changing the same or repairing the same would solve the entire issue with the laptop. Providing warranty to the consumer is because the electronic system is always vulnerability due to some or any of the defect in the component.

6.     In the present, the lap top in question was reported for USB port issue and the service team promptly attended the issue Diagnosed and reported the cause as a physical damage and unintentional damage which is not covered with the warranty and thus offer to resolve the same to replace the motherboard on chargeable basis whereas the complainant with apprehension and expectation of refund of the cost along with compensation and cost, refused to give his consent. There is an unintentional damage caused to the laptop and there is no issue regarding manufacturing defect or technical fault in the laptop. They are willing to resolve the issue and replace the part in the laptop and chargeable basis.  The onus lies on the complainant u/s 39 of the Consumer Protection Act and there is no ground made by the complainant to show that it is a defective product goods sold and supplied and hence the complainant has filed a false and frivolous litigation and prayed the commission to dismiss the complaint by denying the allegations made in each and every para of the complaint.

7.     OP-2 has also filed a version / objection running to 33 pages and we have gone through the same wherein the main contention of the OP-2 is it is a online platform market place providing a platform for seller and purchaser and it has no role in respect of the quality of the product that the manufacturer sells through it.  The sale of the product is subject to the terms and conditions of the same and subject to the warranties offered by the manufacturer. They have no role in the manufacturing the product and regarding the quality of the product. It is only a ecommerce market place were independent 3^rd party sellers list and sell their product to the buyers through their e-commerce platform.  There is a bipartite agreement entered into between the complainant and 3^rd party seller Appario retail Pvt. Ltd., who is a 3^rd party seller of the laptop. Denying the allegations made in each and every para of the complaint, prayed the commission to dismiss the complaint. 

8.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:    IN THE AFFIRMATIVE.

POINT NO.2:    PARTLY IN THE AFFIRMATIVE.

                        For the following.

REASONS

POINT No.1:-

10.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, the complainant purchased a laptop by paying Rs.49,390/- for which invoice has been raised. It is also  in the evidence that there was a some problem with the mother board and USB portal and also in respect of the sound, for which complainant raised the issue with the customer care and some of the problems were attended whereas OP offered for replacement of the USB Portal on charging basis on the ground that it is an unintentional damage for which the complainant refused to pay the amount. In the letter written by one Samir Das Gupta the customer relations case manager of this complaint, has informed by writing a letter dated 05.08.2021 informing the complainant that:

“Refund offer mail to Mr.Rajat Kumar

Dear Mr.Rajat Kumar

Good evening

Thank you for your time over the call

At the outset let me introduce myself, my name is Samir Das Gupta and I am Customer Relations Case Manager for the complaint raised against your HP product. This is in regards to your HP Pavilion X 360 Convertible 14 Dw 1000 (1W798AV) (S/N: 5Cg1015QG1) with the complaint id.5070079918. We sincerely regret for any trouble or inconvenience caused to you. We wish to address your needs and provide the best solution available to resolve your issue as soon as possible as per obligation.

Please accept our sincerest apology for any trouble or inconvenience we have caused you, we have received your complaint. I appreciate you taking the time and giving us a detailed summary of your service experience. As discussed, we have offered unit amount refund to you as an out of court settlement however understood that, you are not agreed for refund and want to proceed legal only. We will share all the details to our legal team to process further

For any feedback, please write to HP INDIA Managers CRT <hp-india>Have a nice day

Warm Receipts

Samir Das Gupta”

11.   In view of the same, if at all there was no problem /manufacturing defect in the laptop purchased by the complainant, OP being a reputed manufacturer would not have agreed for refunding the amount of the product.  As OP has agreed to refund the cost of the product, we have hold that there was some defect in the product and i.e why OP agreed to refund the amount. In view of this clear cut admission, we are of the opinion that there is deficiency in service in not rectifying the USB portal and also not attending to the mother board problem. Further when the dates of purchase the usage and complaint raised by the complainant in respect of the product is taken into consideration, it is to be held that there is manufacturing defect or a defective product has been sold to the complainant. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

12.   In the result complainant is entitle for the refund of the cost of the laptop along with interest at  12% per annum from the date of the complaint regarding the laptop to the OP-1 and further a sum of Rs.5,000/- towards litigations expenses and Rs.10,000/- towards damages for the inconvenience and mental agony caused to the complainant. Hence we answer POINT NO.2 ALSO PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed with cost.
2. OP-1 and 2 are jointly and severally hereby directed to refund the cost of the laptop i.e. Rs.49,390/- to the complainant along with interest at  12% per annum from 19.02.2021(the date of purchase of the laptop) till payment of the entire amount.
3. Further OPs are directed to pay Rs.10,000/- as damages and to pay Rs.5,000/- towards cost of the litigation expenses.
4. OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
5.   Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 18^TH DAY OF AUGUST 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Invoice for purchasing the laptop.

Ex P2: Copy of the legal notice.

Ex. P3: Copy of the email correspondences.

Ex P4: Copy of the 65B of the Indian Evidence Act, Audio CD.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Girish.S, Authroized Signatory of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the board resolution given by OP.

Ex R2: Email communication.

MEMBER         MEMBER       PRESIDENT

RAK*