Ld Advocates for complainant and OP1 are present. Judgement is ready and pronounced in open commission.

BY -SRI.SAURAV CHANDRA, MEMBER

1. Brief facts of the Complainant’s case are that the Complainant has purchased a Laptop for the educational purpose of his son,from the Opposite PartyNo.1vide Invoice No.AD/029/2019-20, dated: 20.03.2020 for Rs.34,800.00; who is a Channel Partner of the Opposite Party No.2.

2. Unfortunately after purchasing, some defects were found in the said Laptop for which the Complainant unable to use the same from the beginning.

3. The Complainant informed the matter to the Op.No.1 over phone for repair but, Op No.1 willfully neglected the matter with a false plea of non-availability of service till normalize of the Covid-19 pandemic situation. Therefore, 3/4 months elapsed but, the Op No.1 didn’t repair or render service to repair the Laptop.

4. Ultimately on repeated urge, the Op No.1 called the Complainant to deposit the said Laptop for necessary repairing or replacement and after eight days handed over the same with repairing but, the Laptop trouble shoot was same as earlier.The Complainant again repeatedly requested the Op No.1 for repairing but, he denied by various false pre-text.

5. Therefore, the Complainant went to the Op No.3, which is an Authorized Service Centre of Op No.2where the Expert Technician of the Op No.3given a report that the Laptop was installed on 25.09.2019 i.e. approximately Six Months prior to the purchase and have “Hardware Problem Diagnosis Onsite Support Parts and Material provided.”

6. Being aggrieved, for selling the Second Hand Laptop by way of fraud and unfair trade practice, the Complainant issued a Legal Notice to the Op No.1on 19.09.2020 for either replacing the Laptop or refund the whole purchase amount with Interest @18% per annum.

7. After receiving the said Legal Notice, the Op No.1 in collusion with the Op No.2made a phone call to the Complainant and told that “validity of the Laptop purchased by you is changed.”This is also one kind of unfair and restrictive trade practice because on 09.05.2020 the Op No.3supplied a report for the validity of warranty from 25.09.2019 to till 23.12.2020 and thereafter informed it was changed.

8. The Op No.2replied against the Legal Notice of the Complainant on 01.10.2020 with an advice “to take help within warranty period but, without availing of the said benefit, your client cannot demand for replacement of the used Laptop and also cannot make demand for refund the purchase amount with Interest @18% p.a.”

9. The cause of action of this case arose on and from 01.10.2020 when the Op No.1denied in fulfilling the demand of the Complainant.

Complainant, therefore,prays for:-

1. To Replace with a New Laptop or Refund the purchase amount with Interest @18% from the date of purchase.

2. To pay Compensation of Rs.50,000.00 by Ops for mental tension, harassment, inconvenience and financial loss.

3. To pay Litigation Cost of Rs.20,000.00 to the Complainant for conducting the case.

4. Any other reliefs.

10. Notices were duly served upon the Ops but, Op No.2 and 3did not contest the case as such the proceeding of the case has ranex-parte against it.

11. The Op No.1 being represented by its’ Learned Advocate has contested the case and has filed the Written Version. The sum and substance of the Written Version filed by Op No.1 are that, the instant case are not maintainable. It denied the allegations made in the Complaint save and except which are admitted. When the Op sold the said laptop to the Complainant after removing the seal of manufacturer of that laptop in presence of Complaint and as such there is no question of selling of second hand laptop. That, there is no agreement for replacement of the used laptop by new one, no other laptop may be repaired when it is running within the warranty period and the Complainant was advised to repair the said laptop to the Service Centre of that HP laptop. This Op wanted to know the warranty period of the said laptop from the HP Care Centre and on 05.01.2021 they informed this Op that “There was a warranty mismatch issue from HP end’s which was rectify while also informed that this laptop is a brand new laptop and warranty date has been started from 15.02.2020 till 14.02.2020 and tried to contact with the Complainant on 24.09.2020 and 25.09.2020 but, he did not response with the HP Care Centre.”

12. Points for determination are:

1. Is the case maintainable in its present form and in law?                
2. Is the Complainant entitled to the relief(s) as sought for?

13. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Affidavit of the Complainant and Written Version filed by the Op No.1 alongwith all other materials on record including Bill/Invoice, Legal Notice, Reply against Legal Notice, Goods Receipt Memo for Repairing/Replacement of Materials, Product Warranty Status Details, Examination-in Chief on Affidavit on behalf of the Complainant etc.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops, as such the case is maintainable in its present form and in law.

4. Op No.1 is a Channel Partner and Op No.3 is an Authorized Service Centre of Op No.2which is a Manufacturing Company of Laptop.

5. It is always the duty of the Manufacturer as well as Seller to ensure the genuineness of the product to its’ valued customer. The Manufacturer or Seller or Service Provider has no authority to change the product Warranty at their whims. As per the Online System Generated Warranty Status Details issued by the Op No.3, the Start Date of Warranty of the product was September 25, 2019whereas the Purchase Date of the product as per the submitted Bill/Invoice was20.03.2020. So, it is very clear and simple, the Warranty has started near about Six Months prior of purchase date. That means, the product was previously sold to someone on 25.09.2019 and for which its warranty was registered in the system. Moreover, at Column ‘Deliverables’ in the Page No.2 of Warranty Status Details of the Product, it is mentioned “Hardware Problem Diagnosis Onsite Support. Parts and Materials Provided”. So, there is no doubt about the product defect and selling of Second Hand Laptop to the Complainant by the Op No.1.

6. Similarly, the Op No.2being a Manufacturer of Laptop has the duty to stop malpractice of its Channel Partner i.e. Op No.1. But, instead of taking proper action/step against the Op No.1 for such malpractice and taking apology or giving any remedy, they advised the Complainant to take help within warranty period and without availing of such benefit and alleged that the Complainant is unable to demand for replacement of the used Laptop. Whereas it is observed the Complainant has already availed such option on 23.08.2020.

7. Therefore, it transpires from the above, there are elements of negligence, unfair trade practice and deficiency in service by both the Op No.1 & 2.

8. Now, coming to the matter of reliefs, the Op No.1& 2 can’t get absolved from the mischief of negligence, unfair trade practice, harassment and deficiency in service. The Op No.3 being the Authorized Service Centre, has got no liability to redress the grievances of Complainant as alleged. So, we think it would just and proper if we direct the Op No.1 & 2 to pay,who are jointly and severally liable,the purchase value of Laptop amounting to Rs.34,800.00 alongwith Interest @8% per annum on the said amount from the date of filing of this case, till realization. In addition to that, the Complainant is entitled to get Rs.10,000.00 towards Compensation and Rs.5,000.00 as Litigation Cost.

1. Accordingly,both the points are decided in favour of the Complainant.

10.  Thus, the complaint case succeeds.

Hence, it is

        O R D E R E D

That the CC-235 of 2020be and the same is allowed ex-pate against Op No.2and allowed on contest against the Op No.1, dismissed exparte against Op No.3.

Op No.1 & 2,who are jointly and severally liable, are hereby directed to pay the purchase value of Laptop amounting to Rs.34,800.00 alongwith Interest @8% per annum on the said amount from the date of filing of this case, till realization. In addition to that, the Complainant is entitled to get Rs.10,000.00 towards Compensation and Rs.5,000.00 as Litigation Cost.

The Op No.1 & 2 will comply the above order within 30 days from the date of this order.

The Complainant would be at liberty to put the order into execution u/s 71 of the Consumer Protection Act, 2019 and to initiate a proceeding u/s 72 of the Consumer Protection Act, 2019.

Let a copy of the judgment be supplied to the parties free of cost.