IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   5^th  DAY OF MARCH 2022

Present: -      Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

           Sri.Stanly Harold, B.A.LLB, Member

    CC.No.143/2017

M.Shereef,

S/o Muhammed kutty,

Re-settlement Colony,

Pallithottam, Kollam 6.

                                                                           :         Complainant

V/S

1. Manager,

Hypertech Systems,

Oppo.Kochukodungalloor Temple,

Near Irumpupalam,

Kollam 691013.                                                   :               Opposite parties

            (By Adv.G.Bimalraj)         

2^nd Addl.OP       Dell Laptop Service Centre,

                          1^st Floor, New Block,

                         Bishop Jerome Nagar,

                          Kollam-1

 3^rd Addl.OP       Dell Authorized store,

                           1^st Floor, New Block,

                         Bishop Jerome Nagar, Kollam.

                        (By Adv.Siju S.)

ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

            This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 2019.

            The averments in the complaint in short are as follows:-

            The complainant had purchased a laptop manufactured by Dell Company on 08.12.2014 after paying an amount of Rs.31,500/-.  At the time of purchasing the 1^st opposite party made the complainant to believe that they are committed towards the customer even after the expiry of warranty period and the spares will be available and are also ready for undertaking repair within a reasonable time.  As the laptop was not functioning from 20.05.2017 complainant handed over his laptop for servicing to the 1^st opposite party and in turn they issued a receipt.  Thereafter the 1^st opposite party informed the complainant that laptop could not be repaired as its I.C is not available.  At the time of the entrustment the I.C has no defective and it was given for service due to its starting trouble.  The 1^st opposite party insisted the complainant to take back the laptop.  In the said circumstances the complainant filed the present complaint with the prayer for direct the 1^st opposite party to repair the laptop and also to pay compensation to the complainant. 

            The 1^st opposite party filed version resisting the averments in the complaint. However it is admitted that the complainant purchased a Dell manufactured laptop from the 1^st opposite party and it was entrusted for service to the 1^st opposite party on 20.05.2017.  At the time of entrustment the laptop was not functioning and was not operative.  It is further contented that after detailed inspection the service engineer of the 1^st opposite party detected that the power supply of I.C of the laptop is defective and it was due to the variation in voltage while charging.  The original I.C of the said laptop is not available in the open market and the same would be available only at the service centre directly run by the Dell company.   In the circumstances 1^st opposite party insisted the complainant to take back the laptop and directed to produce before the authorized service centre of the Dell Company.  The complainant had experimentally approached the opposite party by avoiding the authorized service centre due to the expiry of warranty period.  Moreover due the non-availability of the I.C component the 1^st opposite party could not rectify the defect of the laptop.  The complainant was in an adamant stand that the 1^st opposite party must cure the defect of the laptop as the product was purchased from the 1^st opposite party and the complainant did not taken back the laptop in spite of repeated requests. According to the 1^st opposite party they did not charge any price or consideration from the complainant.  The opposite party further prays to dismiss the complaint with its costs.

The complainant filed I.A 134/2018 praying to implead (1) Dell Laptop service centre, Kollam and (2) Dell authorized store, Kollam as additional opposite parties No.2 & 3. The prayer was allowed. In response to the notice issued from this commission the additional 2^nd and 3^rd opposite parties filed objection to impleading petition (which was already allowed) contending that they are not the necessary parties or the authorized service centre of the Dell Company and requesting to issue notice in proper address of the service centre which is stated in the objection.  Subsequently additional opposite

parties 2 and 3 filed memo dated 17.09.2018 praying to treat the objection to I.A 134/2018 as their version.  The memo is recorded.  It is further contented in the above objection that the address of the service centre stated in the complaint is wrong and the said store was absolutely having no connection with the case.  The correct address of the Dell authorized service centre according to additional opposite parties 2 and 3 is “Qubfix, Ground floor,  A Narayanan Business Centre, Kadappakkada, Kollam.  However the complainant has not taken any steps to implead the said service centre as an opposite party in this case.

In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant is entitled to get the defect of the laptop rectified or in the alternative entitled to get back the invoice price of laptop?
2. Whether there is deficiency in service or any unfair trade practice on the part of the opposite parties 1 and additional opposite parties 2 and 3?
3. Whether the complainant is entitled to get any compensation from the opposite parties?
4. Reliefs and costs?

The case was listed for trial to 07.05.2019 and on that day the complainant was present and filed proof affidavit along with two documents.  The learned counsel for the opposite party has got adjourned the case without cross examining the complainant who was present.  Thereafter the complainant has not turned up though notice was issued directing to appear and give evidence.  The notice returned with endorsement that the complainant is out of station.  Hence the two documents produced along with the complaint has been marked as Ext.P1 and P2.  The learned counsel for the opposite party for the reasons best known to him has opposed the marking the documents.  Hence the documents has been marked as Ext.P1 and P2 subject to objection.  It is to be point out that the Ext.P1 is the original invoice by which the 1^st opposite party has sold laptop Dell company make to the complainant for Rs.31,500/- on 08.12.2014.  It would contain the seal and signature of the authorized signatory of the 1^st opposite party.  It would also contain the cash received seal containing signature of the 1^st opposite party.  In paragraph 1 of the written version filed by the opposite party it is clearly admitted that on 08.12.2014 the 1^st opposite party has sold Dell company manufactured laptop to the complainant.

Ext.P2 is also the receipt issued by the opposite party regarding customer service indicating the complaint of the laptop stated by the customer as “not powering on”.  Ext.P2 is dated 20.05.2017 In paragraph 3 of the written version filed by the 1^st opposite party it is admitted that on 20.05.2017 the 1^st opposite party has produced defective laptop at the service centre of the 1^st opposite party and at that time the laptop was in a condition which was “not switching on”.  Ext.P2 corroborates the above admission of the opposite party.  But for the reasons best known counsel for the 1^st opposite party objected in the marking Ext.P2 documents also.

The opposite party No.1 has also filed proof affidavit and got marked the copy of warranty card as Ext.D1.  As the complainant and 1^st opposite party has not faced cross examination affidavit filed by both are not considered as evidence.

Point No.1 to 3

For avoiding repetition of discussion of materials these three points are considered together.  There is no dispute with regard to the fact that the complaint on 08.12.2014 purchased a Dell manufactured laptop from the 1^st opposite party by paying Rs.31,500/- as per Ext.P1 invoice.  According to the complainant he used the laptop with utmost care and caution.  However after expiry of the warranty period the laptop became inoperative that the complainant noted certain minor defect with regarding the functioning of the laptop.  This fact was informed to the 1^st opposite party and produced the laptop and entrusted the same for repair work.  The 1^st opposite party after receiving the defective laptop verified the same and issued Ext.P2 receipt indicating the complaint stated by the customer as “ not powering on”. 

 In view of the admission of the opposite party in the written version paragraph 1 & 3 we find no merit in the objection of the learned counsel for the opposite party in marking Ext.P1 & P2 documents and hence the marking of the above two documents are made absolute.  In view of the averments in the complaint coupled with Exts.P1 and P2 documents and the admission of the opposite party in paragraph 1 to 3 of the written

version it is clear that the 1^st opposite party is a sales cum service centre of the Dell laptop  that it has sold one the laptop to the complainant as per P1 invoice after receiving Rs.31,500/- that the said laptop has became defective after the warranty period and the complainant has produced the same before the 1^st opposite party and stated the complaint that it is “not switching on”.  By receiving the defective laptop at the service centre, the 1^st opposite party has issued Ext.P2 receipt/job sheet indicating the above defect.  In the circumstances we find no merit in the contention of the 1^st opposite party that it is not the service centre of Dell company manufactured laptop and somebody else is the authorized service centre of the Dell laptop sold by 1^st opposite party and the complainant is expected to get repaired the defective laptop from that authorized service centre.  However the 1^st opposite party has not furnished the correct address of the alleged service centre of Dell company made laptop even though it is contented it is not the authorized service centre. 

The learned counsel for the opposite party has vehemently argued that there is no deficiency in service or any unfair trade practice on the part of the opposite party who only sold the laptop to the complainant as it has not received any consideration for repairing the laptop. The learned counsel for the 1^st opposite party has further argued that as the complainant has not turned up and prosecuted the complaint the case has to be dismissed for default.   The mandate U/s 13(2) (c) of the Consumer Protection Act 1986 that where the complainant fails to appear on the date of hearing the district forum may either dismiss the complaint for default or decide it on merit.  The complainant in this case has averred his grievance in the complaint and produced two documents to prove the above averments along with the complaint itself.  It is further to be pointed out that the complainant though filed proof affidavit and already produced  2 documents along with the complaint the opposite party’s Advocate failed to cross examine the complainant and got adjourned the case when the complainant was present to face the cross examination.   Subsequently the complainant failed to appear and he left the station.  In the circumstances the Forum/Commission is bound to dispose of the case on merit as directed in the above quoted provision of law.

   The term deficiency in service is defined U/s 2 (d) of the Consumer Protection Act 1986. Accordingly deficiency means any default imperfection, shortcoming, inadequacy in the quality nature and manner of performance which required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of contract or otherwise in relation to any service.  Here in this case admittedly the opposite party has sold one Dell company made laptop to the complainant.  According to the complainant, 1^st opposite party Hypertech Systems is the sales cum service agency of the Dell laptop company and it has made the complainant to believe that it would obtain spare parts and get rectified the defects if any occurred even after the expiry of warranty period and by believing the above representation the complainant has purchased the laptop from the 1^st opposite party.  Even according to the 1^st opposite party the laptop has become defective after expiry of warranty period as shown in Ext.D1 document.  In the circumstances and in view of the undertaking made by the 1^st opposite party at the time of effecting sale the 1^st opposite party is bound to set right the defect or fault occurred in the laptop (which was sold after receiving Rs.31,500/- as sale consideration) on receiving payment for repair work as warranty period is over. The averments in paragraph 3 of the written version filed by 1^st opposite party coupled with Ext.P2 job sheet it is clear that the 1^st opposite party is the service centre of the Dell company made laptop and that is why the defective laptop brought by the complainant was received by the technician of 1^st opposite party and issued P2 job sheet indicating its defect stated by the complainant.  If the 1^st opposite party is not actually the service centre of the Dell laptop they ought not have received the defective laptop and issued Ext.P2 document indicating the defect.  They ought to have directed the complainant to the actual service centre if any of the Dell company.  It is pertinent to note the contention of the opposite party in para 4 of the written version that on a detailed verification by the service engineer of the 1^st opposite party it was understood that one IC which gives power supply has become defective and that original component is not available in the market and that fact was intimated the complainant over phone.  The above admission in the version itself would indicate that they are conducting service of the Dell laptop and they are the having of service engineers who are competent to verify and set right the defect of the laptop .

 In the very same paragraph the 1^st opposite party would contend that the service centre directly conducted by Dell company may have the original spare parts and therefore the complainant can very well receive back the defective laptop and get the defect cured by the authorized service centre.  The above contention would make it clear that the Dell company has been providing defective spare parts through some other authorized service centers which is within the knowledge of the opposite party.  In such situation it is the duty of the 1^st opposite party either to transmit the defective laptop of the complainant to that service centre or obtain the said IC directly from the Dell company which manufactured the laptop and set right the defect of the laptop though their service Engineers as undertaken by it at the time of effecting sale of the laptop to the complainant.  The nonperformance of the above duty by the 1^st opposite party definitely amounts to deficiency in service. 

A person who purchased a laptop  by spending a heavy price of Rs.31,500/- is not expected to throw it away after 2 -3 years use.  The 1^st opposite party who sold the laptop and swallowed the profit is expected to assist the complainant/customer either by repairing it after obtaining the defective component directly from the manufacturing company or by giving proper address of the agency or service centre where the defect can be properly rectified.  But the 1^st opposite party has not even furnished the correct address of the service centre even in the written version the 1^st opposite party has misdirected the complainant .    It is further to be pointed out though the complainant managed to implead the additional opposite parties 2 and 3 they entered appearance and filed objection/version by contending that they are not authorized service centre of the Dell company and they are having no connection whatsoever with Dell company.  In the circumstances it is crystal clear that the non-furnishing of correct details of the service centre of the product sold by 1^st opposite party amounts to  clear deficiency in service and unfair trade practice on the part of the 1^st opposite party. 

Learned counsel for the 1^st opposite party has vehemently argued that the 1^st opposite party has not received any service charge for effecting any service that they have received the defective laptop and on verification the IC component of the laptop was found defective and same is not available in the open market they could not set right defect and as no consideration has been received for service the term deficiency in service would not attract in the case.  In view of the facts and circumstances of the case we find no merit in the above contention.  The opposite party has sold the laptop to the complainant and realized Rs.31,500/-.  Hence it is clear that the product has been sold for valid consideration.  According to the complainant the 1^st opposite party has sold the product to him by undertaking that all the spare parts will be available and that they will be ready to repair the laptop even after the expiry of the warranty period.  The above averments in para 5 of the complaint remains undisputed in the written version of 1^st opposite party.  The nonfulfillment of the undertaking given to the complainant at the time of effecting sales would definitely amounts to deficiency in service and unfair trade practice.

  It is further to be pointed out that the  averments in the complaint would not indicate that complainant has demand any gratuitous service of his defective laptop after the expiry of  the warranty period.  Even the opposite party has no case in the written version that the complainant insisted to set right the defect free of charge but the contention of the opposite party in this regard is that complainant insisted the 1^st opposite party to repair the defective laptop as the opposite party has sold the laptop to the complainant.  In the circumstances we find no merit in the above contention.

It is clear from the available materials that the complainant has filed IA 337/2018 praying to cause production of the laptop before the commission.  But the laptop is not seen produced before the commission.  The opposite party has also not filed any memo stating that they have handed over the defective laptop directly to the complainant.  But during argument stage the opposite party’s counsel has submitted that the defective laptop has already been taken back by the complainant and he got repaired it from somewhere else and even now the complainant has been using the same.

In view of the materials available on record we hold that there is deficiency in service and unfair trade practice on the part of the 1^st opposite party.  As the 1^st opposite party failed to obtain spare IC of the laptop directly from the manufacturing company and set right the defect of the laptop within a reasonable period the complainant is entitled to get compensation from the opposite party as prayed for.  Additional opposite parties 2 and 3 are exonerated from liability.  The points answered accordingly.

Point No.4

In the result complaint stands allowed in the following terms.  The 1^st opposite party is directed to pay Rs.5,000/- as compensation to the complainant within 45 days from today.  The 1^st opposite party is also directed to pay Rs.3,000/- as costs of the proceedings.  If the 1^st opposite party fails to pay compensation and costs as ordered above, the complainant is at liberty to recover Rs.5000+ 3000 with interest at the rate of 9% per annum for Rs.5,000/- from the date of complaint till realization from the 1^st opposite party and its assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 5^th  day of  March 2022.        

E.M .MUHAMMED IBRAHIM:Sd/-

STANLY HAROLD:Sd/-

Forwarded/by Order

                                                                                       Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1             : Original invoice dated 08.12.2014

Ext.P2             : Receipt of Customer service dated 20.05.2017

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1            : Warranty card