Haryana

Karnal

31/2013

Vivek Mattal S/o Rulia Ram Gupta - Complainant(s)

Versus

M/s Acer India Private Limited - Opp.Party(s)

Rohit Gupta

10 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.31 of 2013

                                                               Date of instt.: 17.1.2013

                                                          Date of decision:11 .03.2016

 

 

Vivek  Mittal son of Sh.Rulia Ram Gupta Advocate, house no.10, Sector 14, Urban Estate, Karnal.

 

.                                                                               ……..Complainant.

                                      Vs.

1. M/s Acer India Pvt. Limited, 3^rd Floor, Devika Tower, 61, Nehru Place, New Delhi 110019.

2. M/s Sysnet Technology, 350, Basement, Mugal Canal, Karnal.

3.M/s S.K. Technology, SCO No.397, Basement, Mugal Canal, Karnal.

 

                                                                           ……… Opposite Party.

                     Complaint u/s 12  of the Consumer

                     Protection Act.

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.Rohit Gupta  Advocate for the complainant.

                   Sh.Kuldeep Singh Advocate for the Opposite Party no.1.

                   Opposite Party no.2 ex parte.

                   Sh.Y.K.Kalia Advocate for the Opposite Party no.3.

 

ORDER:                  

                   This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he  purchased one laptop  Acer TravelMate 5742/5742Z/5542 bearing  Serial No. LXTTZ90CO201421F4CF160 from the Opposite Party no.3 for Rs.25000/-, vide invoice No.1007 dated 9.2.2012. The said laptop was manufactured and marketed by the Opposite Party No.3.  The laptop was not working properly since very beginning and the matter was reported to the Opposite Party no.1 in that regard. He was asked by the Opposite Party no.1 to approach the Opposite Party no.2, the authorized service centre, on 5.9.2012. Accordingly, the laptop was handed over by him to Opposite Party no.2 for removal of the defects therein, but the same was returned without removing the defect in USB ports. Complaint dated 5.9.2012 – 712 was lodged. He again approached the Opposite Parties with the request to repair the laptop or replace the same if not repairable, but they did not pay any  heed to his requests. In this way, there was deficiency in services and unfair trade practice on the part of the Opposite Parties, which caused him unnecessary mental harassment apart from financial loss.

 

2.                 Notice of the complaint was given to the Opposite Parties. The Opposite Party no.1 filed written statement disputing the claim of the complainant on various grounds. It has been admitted that the complainant purchased laptop on 9.2.2012 from the Opposite Party no.3 and the said  laptop carried warranty of one year from the date of purchase. It has been submitted that the Opposite Party no.3 was only a dealer and not manufacturer and there was no direct or indirect relationship with the Opposite Party no.3 as the goods were generally sold by Opposite Party no.1 to its main National Distributor, who in turn sold the goods to various channel partners, who undertook the sale to retail customers. It has further been pleaded that  it is clear from the pleadings of the complaint that the laptop gave excellent and uninterrupted performance for 209 days  i.e.  upto 5.9.2012.The complainant refused to sign the call report on the request of Opposite Parties and had taken back the laptop on 5.9.2012.The second complaint was lodged by the complainant with the call centre on 19.10.2012 but the same was rejected after confirmation by the complainant that  laptop was physically damaged. Therefore, the Opposite Party no.2  could not undertake repairs and service under warranty. Thus, allegations contained in para no.3 of the complaint that the complaint filed on 5.9.2012 was not resolved, is false and baseless. As per limited  product warranty,  the Opposite party No.1 was  under obligation to provide warranty service only in the case of any manufacturing defect, which are basically arising out  due to poor workman ship, but  as per the clause B  of the warranty any  part damaged or rendered defective was not covered under the warranty. The complainant  breached the  warranty  terms, therefore, not  entitled for warranty service. It has further been averred that the complaintis  baseless , false and frivolous and an abuse of the process of law and this Forum has got no jurisdiction to entertain and decide the present complaint. 

 

3.                 The Opposite Party no.2 failed to appear despite service, therefore, exparte proceedings were initiated against it vide order dated 27.2.2013.

 

4.                 The Opposite Party no.3 filed separate written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable  in the present form and that the complainant is estopped by his acts and conduct from filing the present complaint.

                   On merits, it has been pleaded that Opposite Party no.3 had no direct business relations in legal capacity whatsoever  either with the Opposite Party no.1 or Opposite Party no.2.In fact, the Opposite Party no.1 was dealing in Acer  laptop  after procuring the same from M/s Exclusive Systems(Haryana) 115, Ground Floor, Ganpati Arcade, Bus stand, Gurudwara Road, Gurgaon, vide invoice no.359 dated 1.2.2012, which were  the then Distributors for Acer Laptops .  Therefore, the Opposite Party no.3 had no role to play in any of the after sale services and or attending any complaints qua Acer brand laptops and such facts were  made clear  in invoice no.1007 dated 9.2.2012.  In this way, there was no deficiency in services on the part of the Opposite Party no.3. The other allegations made in the complaint have been denied.

 

5.                 In evidence of the complainant,  his affidavit Ex.C1 and documents Ex.C2 to Ex.C3 have been tendered.

6.                 On the other hand, in evidence of Opposite Parties affidavit of Sushil Arora Ex.OP3/1, affidavit of B.K.Parkash Ex.O1/A and documents Ex.OP3/2 and Ex.OP3/3 have  been tendered.

7.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

 

8.                 It is established from the pleadings and evidence on record that the complainant had purchased one laptop manufactured by Opposite Party no.1 from the Opposite Party no.3 on 9.2.2012 for Rs.25000/-. As per the case of the complainant, the said laptop was not working properly since very beginning and he made complaint to Opposite Party no.1 on 5.9.2012 and as per directions of Opposite Party no.1, got checked the laptop from Opposite Party no.2, but the Opposite Party no.2 refused to remove the defect in USB Ports. The Opposite Party no.1 in the written statement denied that there was any defect in the USB ports, rather asserted that the complaint of the complainant was rejected by Opposite Party no.2 on 19.12.2012 as the laptop was physically damaged.

10.                        From the contents of para no.3 of the written statement of Opposite Party no.1 it is established that on 19.12.2012, the complainant had taken the laptop to authorized service centre i.e. Opposite Party no.2.It has been pleaded by the Opposite Party no.1 that the complaint  was rejected  after confirmation by the complainant that  note book computer was physically damaged, therefore, the Opposite Party no.2 could not undertook repair and service under warranty.  Under such circumstances, it was incumbent upon the Opposite Party no.1 to  lead cogent evidence to prove that the laptop could not be repaired as there was physical damage to the same. However, no documentary evidence worth the name has been placed on the record in this regard. The record of Opposite Party no.2 maintained regarding complaints of the complainant and the information sent to Opposite Party no.1 regarding repairs could be the best evidence to prove such facts, but the Opposite Party no.1 has not produced such evidence for the reasons best known to it. Thus, the best material evidence, which could be available, has been withheld by the Opposite Party no.1 for the reasons best known to it. Therefore, adverse inference is to be drawn against the Opposite Party no.1. Under such circumstances, the plea raised by the Opposite Party no.1 that the claim of the complainant was rejected  on the ground that there was physical damage to the laptop, cannot be accepted.

 

11.               As per the case of the complainant there was defect in USB ports of the laptop. Such allegations find support from his affidavit and documents Ex.C3 issued by the Computer Solutions Mart wherein it has been mentioned that USB was not working which is the main part of the laptop. The complainant had made complaints to the Opposite Party no.1 within the period of warranty that there was defect in the USB ports. Therefore, the Opposite Party no.1 was duty bound to get removed such defects during the warranty period.

 

12.               During course of arguments, the learned counsel for the Opposite parties submitted that defect in the USB ports could be due to virus  and if the antivirus is used, the defect can be removed. However, such argument does not cut any ice in favour of the Opposite Parties. If, the defect can be removed by using the antivirus, then the same should have been  got removed by Opposite Party no.1  through its authorized service centre, but even no such step was taken in that direction for removal of the defect. In this way, not removing the defect during the warranty period, amounted to deficiency in services on the part of Opposite Party no.1.

13.               As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite Party no.1 to repair the laptop of the complainant and if the same is not repairable, to replace the said laptop of the complainant with a new one of the same model and cost. The complainant shall also be entitled for a sum of Rs.5500/- for the mental harassment caused to him and for the litigation expenses. The Opposite Party no.1 shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:11.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

 

Present:-        Sh.Rohit Gupta  Advocate for the complainant.

                   Sh.Kuldeep Singh Advocate for the Opposite Party no.1.

                   Opposite Party no.2 ex parte.

                   Sh.Y.K.Kalia Advocate for the Opposite Party no.3.

 

                   Arguments heard. For orders, the case is adjourned to 11.3.2016.

 

Announced
dated:10.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

Present:-        Sh.Rohit Gupta  Advocate for the complainant.

                   Sh.Kuldeep Singh Advocate for the Opposite Party no.1.

                   Opposite Party no.2 ex parte.

                   Sh.Y.K.Kalia Advocate for the Opposite Party no.3.

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:10.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.