| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.175/2018 Ms. MEENAKSHI H. NO. 193D, O BLOCK, PHASE-11, SECTOR-51, NARAYAN VIHAR, JAIPUR-302020, RAJASTHAN…..COMPLAINANT ALSO AT:- H.NO. 393, SHAHPUR JAT, NEW DELHI-110049 Vs. - LAPCOM PERIPHERALS PVT. LTD.
G-4, GEDORE HOUSE, 51-52 NEHRU PLACE NEW DELHI-110019.…..RESPONDENTNo.1/ OP - DELL AUTHORIZED SERVICE CENTER
REGENERSIS INDIA PVT LTD (A CTDI COMPANY), UPPER GROUND FLOOR, DEVIKA TOWER, NEHRU PLACE, NEW DELHI- 110019 (LANDMARK BEHIND MODI TOWER) PH: 011-46035121.…..RESPONDENTNo.2/ OP - DELL INTERNATIONAL SERVICES INDIA PVT. LTD.
REGISTERED OFFICE #12/1,12/2A,13/1A, DIVYASREE GREENS CHALLAGHATA VILLAGE, VARTHUR HOBLI, DOMLUR OP, INNER RING ROAD, BANGALORE- 560071 TELEPHONE: 1800-425-4026 (TOLL-FREE) Date of Institution-10/08/2018 Date of Order- 25/04/2022 O R D E R RASHMI BANSAL– Member - Complainant brought this case against OP company- Dell India Pvt Ltd, its dealer i.e. OP2 and the authorized service center i.e. OP3 for award of compensation and refund of the price of the laptop on account of manufacturing defect in laptop and deficiency in services on the part of OPs.
- The facts of the case are that complainant purchased a laptop Dell Inspiron 5570, i7 processor, 8th generation on 02.09.2017, from OP1 against consideration of Rs. 61,000/ and the payment was made in cash and through debit card vide invoice number LAP / GD4 / POSOO / 2797/ 2017–2018 dated 02.09.2017 with guarantee/warranty card valid for one year.
- This is stated by complainant that within 10 days from the purchase of the said laptop, lots of problems emerged like issues with display, screen was not clearly visible, hanging, smell of burning inside the laptop, and problems with camera etc, because of which complainant could not work properly on the laptop. Complainant made several calls/ complaints to Dell technical department for resolving the issues, OP replaced the laptop in question with a new laptop, of the same specification as the original one on 16.10.2017, however, after 15 days of the said replacement, complainant again noticed similar issues with the replaced new laptop too, including that software like core Java, advance Java, my SQL, notepad++ etc were not working properly on this new replaced laptop. Experiencing malfunction of the laptop, the complainant lodged many complaints with OP through email and personal visit to OP3 but to no avail.
- The complainant faced more problem because she has taken Core Java and advance Java classes to grow her career but she could not practice on the laptop because of non-functioning of the above said software. That finally the complainant has filed a complaint with the consumer court, which referred the matter to mediation center, vide reference number 980 – QNCD – 2017/case number 71–2018, wherein the opposite parties once again agreed to replace the laptop and issued a new laptop to complainant on 29.05.2018 of same specification. This is stated by complainant that she had requested OP to give her the laptop of another series as the present series laptop has lot of problems but OP did not agree to that. After few days of use of the newly replaced (second time replaced) laptop, the complainant again started experiencing same problems as she has been facing with past two laptops.
- This is further stated by the complainant that since the replaced laptop belongs to the same series as has been originally purchased by complainant, therefore, current laptop was also showing same issues. The complainant states that she is presently using the same laptop and facing problems. She has visited the authorized service center to get the laptop checked but problem could not be solved.
- This is the grievance of the complainant that she was very much harassed by OP company, physically and mentally, approximately for seven months up to 29.05.2018 with defective quality of product given by OP by falsely representing that the said laptop is of a particular standard quality, and that it has failed to give service for which it was purchased and the whole purpose of purchasing the laptop was negated. The OPs have further failed to provide services and guarantee/warranty as per agreed terms and conditions stipulated in the guarantee card issued by OP.
- It is the further allegation of the complainant that she has suffered a great pain and mental agony due to deficiency of services and negligence on the part of all the OP, therefore, praying for refund of the price of the laptop and compensation towards harassment, trouble, loss of occupation, physical inconvenience, financial loss as suffered by the complainant on account of breach of agreement, breach of warranty, breach of duty on the part of respondent, along with the litigation cost.
- OP1, OP2 and OP3 were proceeded ex - parte vide order dated 25.10.2018. Complainant has filed ex – parte evidence by way of affidavit and has produced the cash bills for the price paid by her to OP for the laptop exhibited as exhibit CW1/1 showing payment of Rs. 61,000/- , email conversation between complainant and the opposite party exhibited as CW1/2 (Colly), Bill and invoices of Repair exhibited as exhibit CW1/3, the copy of the PAN card is exhibit CW 1/4, copy of medical bill and treatment description is exhibit CW1/5.
- Heard the arguments, and perused the evidence on record.
- This is the admitted case of complainant that she has opted the model of the laptop as per her requirement considering her preferences. From the invoice it is established that Complainant has purchased the laptop from OP1. The OP has replaced the laptop of complainant of the specification and price same as the original laptop and thus addressed complainant’s grievances. After purchasing an item of certain specification, an entirely different article/ item cannot be claimed on replacement. So far as issues related with software are concerned, same cannot be said as the manufacturing defect, since that is the feature of the operating system of the laptop. If operating system is same in a particular series, then all the laptop of that series shall have same features. So far as other issues are concerned, relating to the vision, hanging, clarity on the screen, taskbar and a smell of burning, the same were addressed by the opposite party by exchanging the laptop in question two times with the new laptop.
- Moreover, complainant has not filed any evidence to prove manufacturing defect in the laptop and further failed to place on record any expert opinion or any scintilla of evidence to show that laptop or that series of the laptop is suffering from manufacturing defect. The report dated 28.06.2018 of OP stated that there is no burning works from inside / outside of the laptop and system is working fine as per design and a mild smell noticed which is due to affected behavior of plastic and after this inspection, complainant has accepted the product without any protest.
- Complainant further alleged the deficiency of service on the part of the OP in providing proper service to laptop. The deficiency of service has been defined under Section 2(g) 11 of the 1986 Act defines Deficiency as under:
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The 2019 Act added that deficiency includes- - Any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
- Deliberate withholding of relevant information by such person to the consumer;”
The Hon’ble Supreme Court has recently held in the case of “ SGS India Limited V/S Dolphin International Limited” Civil appeal No. 5759/2009 decided on 06/10/2021 that the onus of proof of deficiency in service in on the complainant. It is the complainant who had approached the Commission therefore, without any prove of deficiency the OP cannot be held responsible for deficiency in service. While making these observations, the SC has relied upon the judgment in Ravneet Singh Bagga v/s KLM Royal Dutch Airlines & Anr. (2000) 1 SCC 66 where it was held that the burden of proving the deficiency in service is upon the person who alleges it. “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on fact been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.” In Indigo Airlines v/s Kalpana Rani Debbarma & Ors. (2020) 9 SCC 424 also it was held by the SC that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complainant and observed as under: “In our opinion the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Forum, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/ complainants had discharged their Initial burden in establishing the factum of deficiency in service.” In view of the above discussion we are of the considered view that the complaint is vague with regard to the averments made therein as to deficiency in service, complainant has failed to discharge the burden. - It was a contention of the Complainant that the Opponents have indulged into 'unfair trade practice' by selling her a defective laptop. However, the Complainant has not produced any expert evidence to prove her case that the laptop was defective. On the contrary, during the warranty period the OP has replaced the laptop twice and has issued new laptop to the complainant on both the occasions, hence, this is not a case of indulging into unfair trade practice or sale of defective goods. This is also not the case of complainant she has been sold the laptop of her choice on misrepresentation by the OP that laptop in question supports all software. Further, it is not the case of the Appellant/original Complainant that the laptop is not working. Hence, this is not a case of unfair trade practice or manufacturing defect in the laptop.
- In this perspective and keeping in view the meaning of the term deficiency, unfair trade practice and on the basis of the evidence on record, we cannot hold that there was deficiency in service or unfair trade practice in the present case on the part of the opposite party.
- Therefore, the point for consideration left is whether the complainant is entitled to get compensation as prayed for?
- Upon consideration of all the above mentioned factors, this commission is of the view that it is a case of inconvenience caused to the Complainant as she had to take the laptop to the Opponent No.2 many times and this amounts to deficiency in service. A compensation of 10,000/- to the Complainant is therefore granted. OP1 is directed to pay 10,000/- within 90 days from the date of order. In default, the same shall carry interest at the rate of 10% per annum till the date of payment. With the above, this case is disposed of. Supply free certified copies of the judgment to the parties within a period of 15 days from the date of pronouncement and file thereafter may be consigned to record room.
- The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
