| ORDER | District Consumer Disputes Redressal Forum, Tarn Taran (Punjab). C.C. No. :44 of 2015 Dt. of Inst :20.08.2015 Dt. of Dec :11.2.2016 Vikas Kumar son of Sh.Ram Krishan, resident of Village: Jeobala, Tehsil & District Tarn Taran. …Complainant Versus - M/s.Brothers Computers 18-Radha Suwami Market, Railway Road, Tarn Taran through its proprietor Kumad Sharma.
- HEWLETT PACKARD India Sales Pvt.Limited, 24, Salarpuria Arena Hosurmain Road, Audogodi, Bangalore-560030.
…Opposite Parties Complaint Under Section 10, 11 and 12 of the Consumer Protection Act. Present: Sh.Vikas Kumar, complainant in person. Sh.Kumud Kumar, proprietor of Opposite Party No.1 Sh.A.S.Dhillon, Advocate counsel for Opposite Party No.2 Coram: Sh. S.S.Panesar, President Sh. R.D. Sharma, Member Smt.Jaswinder Kaur, Member ORDER (Sh.S.S.Panesar, President) 1 Complainant Vikas Kumar has filed the present complaint under Section 10, 11 and 12 of the Consumer Protection Act (herein-after called as ‘the Act’) against (i)M/s.Brothers Computers 18-Radha Suwami Market, Railway Road, Tarn Taran through its proprietor Kumad Sharma (herein-in after referred to as ‘Opposite Party No.1’) and HEWLETT PACKARD India Sales Pvt.Limited, 24, Salarpuria Arena Hosurmain Road, Audogodi, Bangalore-560030 (herein-after referred to as ‘Opposite Party No.2’) directing them to change the printer and also to direct them to pay Rs.10,000/- as compensation on account of deficiency in service. - Briefly stated the facts of the present complaint are that the complainant has purchased one printer, Model 2520 bearing Sr.No.CN 42J2J3N from Opposite Party No.1 for a consideration of Rs.7,500/- on 13.9.2014. Opposite Party No.1 is retailer of Opposite Party No.2. It is submitted that at the time of purchase of the printer in question on 13.9.2014, Opposite Party No.1 had given the guarantee for one year of the said printer. After few months from its purchase, said printer became defective and Opposite Party No.1 repaired the same through Opposite Party No.2. But after 1½ months, the said printer again became defective and the complainant approached Opposite Party No.1 and Opposite Party No.1 again repaired the same. At that time, the Opposite Party No.1 told the complainant that they would not repair the printer in question again. But the printer in question again became defective and the complainant approached Opposite Party No.1 and this time, the Opposite Party No.1 refused to repair the same and informed that the defect in the printer is due to the fault of the complainant, but this averment of Opposite Party No.1 is incorrect. Complainant further alleged that the printer in question became defective within guarantee period and the Opposite Party No.1 is duty bound to get the same repaired free of cost and the complainant has no fault of any kind if the printer in question became defective again and again. That as per the guarantee, the Opposite Parties are bound to repair the printer in question and also bound to remove its defect. But in case, the defect is not removed by the Opposite Parties, they are bound to replace the printer in question. The complainant visited Opposite Party No.1 time and again to get the defect in the printer in question removed, but the Opposite Parties refused to admit the rightful claim of the complainant. Hence the present complaint.
- Upon notice, Opposite Party No.1 appeared in person and filed written version taking preliminary objections that the present complaint is not maintainable in the eyes of law; that the complainant does not fall under the definition of ‘consumer’ as he has purchased the printer in question for commercial purpose and that the complainant has got no locus standi as well as cause of action to file the present complaint against Opposite Party No.1 as the Opposite Party No.1 has got no connection in replacement of the printer in question, as alleged by the complainant. Moreover, the complainant never approached Opposite Party No.1, rather he directly contacted Opposite Party No.2. On merits, it is submitted that Opposite Party No.1 sold the product in dispute manufactured by Opposite Party No.2 to the complainant as per the terms and conditions of purchase and the complainant is also bound by the same. Opposite Party No.1 is no way liable or responsible for replacing or repairing the printer in question. However, the guarantee/ warrantee is only to be given by the company and not by Opposite Party No.1 as alleged. It is further submitted that Opposite Party No.1 every time got repaired the printer in question from Opposite Party No.2 whenever the complainant approached Opposite Party No.1, but now the complainant has filed the present false complaint by concocting the facts. It is denied that Opposite Party No.1 ever refused to repair the printer in question as alleged by the complainant. Other averments made by the complainant in the complaint are denied and incorrect. It is therefore, prayed that the complaint being false and frivolous may please be dismissed with costs.
- Opposite Party No.2 appeared through its counsel and filed separate written version taking the preliminary objections that the present complaint filed by the complainant is an abuse of process of law and is not maintainable as the complainant has approached this Forum by suppressing the material facts and that the averments made in the complaint are vague, baseless and with malafide intent. The complainant has made misconceived and baseless allegations of deficiency in service and the printer in question being defective without relying on any expert report from a recognized and notified laboratory under section 13(1) of the Act and deficiency in service without any documentary evidence in support of the allegations made in the complaint. The complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Act as there is neither any manufacturing defect proved in the printer in question nor any deficiency in service being established against the answering Opposite Party. Opposite Party No.2 further submitted that Opposite Party No.1 from whom the complainant purchased the printer in question, is not an authroised dealer/ authroised support service provider of HP Branded products and there is no privity of contract between the answering Opposite Party and Opposite Party No.1. Answering Opposite Party is neither responsible nor liable for the assurances given by Opposite Party No.1 to the complainant in its independent capacity. It is further submitted that the printer in question is a well established product in the market and over a period of years, the consumers are using the product and the complainant had purchased the printer, after being satisfied with the condition of the printer and its performance. All the products manufactured by Opposite Party No.2 are marketed only after the prototype of the printer being approved by the appropriate government agency, specifically authroised for the said purpose. All the products manufactured by Opposite Party No.2 are put through stringent control systems, quality checks and tests by the counter quality department before being cleared for dispatch to the market. The complainant had failed and neglected to follow the guidelines/ procedure given in the user manual, as recommended for smooth and better performance of the printer in question at optimum cost viz. correct operating procedure- do’s and don’ts for maintenance and performance of the printer. The printer in question was mishandled by refilling the ink and brought at the service centre for repairs, but the complainant has suppressed the said material facts to this Forum. It is further submitted that as per the terms and conditions of the warranty applicable, for the printer in question, the warranty shall be limited for a period of one year from the date of sale of the product subject to fulfillment of other terms and conditions of the warranty. But in the instant case, in view of the improper maintenance and operational faults on the part of the complainant, the warranty ceases to exist and craves leave to rely on the relevant terms and conditions of the warranty at the time of hearing. On merits, the averments of purchase of the printer in question by the complainant on 13.9.2014 for a sum of Rs.7500/-, are denied as the same is not within the knowledge of the answering Opposite Party. Further, on merits the Opposite Party No.2 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the Opposite Party No.2 prays for the dismissal of the complaint as the complainant has failed to make out a prima facie case against Opposite Party No.2.
- To prove his case, the complainant has tendered into evidence his affidavit Ex.C1, affidavit of Aminder Singh Ex.C2, copy of bill Ex.C3, copies of job cards Ex.C4 and Ex.C5 and closed his evidence.
- To rebut the case of the complainant, Opposite Party No.1 tendered in evidence his affidavit Ex.OP1/1. Similarly, Opposite Party No.2 tendered into evidence the affidavit of Spurthi Mouli Ex.OP2/1 and thereafter both the Opposite Parties closed their respective evidence.
- We have heard the complainant as well as Sh.Kumud Kumar, proprietor of Opposite Party No.1 and ld.counsel for Opposite Party No.2 and have also carefully gone through the record placed on file.
- Ld. counsel for the complainant has vehemently contended that it is not denied by the opposite parties that the complainant has purchased one printer Model 2520 bearing Sr.No.CN 42J2J3N from Opposite Party No.1 for a consideration of Rs.7,500/- on 13.9.2014. The bill/ invoice accounts for Ex, C.3. It is further contended that at the time of purchase of printer in dispute on 13.9.2014, the opposite party No. 1 had given warranty/ guarantee for one year regarding the product. After few months of its purchase, printer became defective and opposite party No. 1 repaired the same through opposite party No. 2 but thereafter about a period of 1½ months the printer in dispute again went out of order and complainant approached Opposite Party No.1 and Opposite Party No.1 again repaired the same through good offices of Opposite Party No.2. Opposite Party No.1 also told the complainant that printer in dispute will not be repaired in future. But again the printer in dispute went out of order and complainant approached Opposite Party No.1 and Opposite Party No.1 refused to repair the same and intimated the complainant that printer in dispute was not giving satisfactory service due to default of complainant, which averment is denied by the complainant. Since, the printer in dispute went out of order for so many times within warranty/ guarantee period, therefore, Opposite Party No.1 is under legal obligation to get the same repaired free of costs. The complainant has nothing to do with the defective functioning of printer in dispute and very fact that the printer in dispute was not giving unsatisfactory service through out shows that the printer has some manufacturing defect which is beyond the scope of repair. It is further contended that either Opposite Party No.1 should repair the printer in dispute or they are under legal obligation to replace the defective printer with some new printer of same make and quality without charging any sum from the complainant. The complainant has also made a claim for recovery of compensation to the tune of Rs. 10,000/- on account of harassment at the hands of the opposite parties.
- On the other hand, Ld. counsel for the opposite parties have vehemently contended that defect in printer in dispute has occasioned on account of the default made by the complainant himself. The complainant himself is guilty of misuse of the printer and there is no deficiency in service on the part of the opposite parties. The printer in dispute does not suffer from any manufacturing defect. The complainant has purchased the printer in dispute from Opposite Party No.1 who is not the authorized dealer/ authorized support service provider H.P. branded products. In view of the improper maintenance and operational faults on the part of the complainant, the warranty ceases to exist and craves leave to rely on the relevant terms and conditions of the warranty at the time of hearing. The complainant has alleged manufacturing defect in the printer in question but they have not produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject printer suffered from the problem of manufacturing defect. The printer functioned without any defect w.e.f. 13.9.2014 up till 10.4.2015 which clearly shows that printer was not suffering from any manufacturing defect and multiple part of refilling of cartridge has occurred due to the improper maintenance and misuse by the complainant. It is therefore contended that the complaint is liable to be dismissed and same may be dismissed with costs.
- We have given thoughtful consideration to rival contentions.
- There is no denying the fact that the complainant purchased the printer in dispute from Opposite Party No.1 for a consideration of Rs.7,500/- vide bill/ invoice Ex. C.3. It is further in evidence that the printer in dispute went out of order on several occasions and the same was got repaired by Opposite Party No.1 through their service centre i.e. Opposite Party No.2. It is further in evidence that even, at present the printer in dispute is not giving a satisfactory service and same is defective. The complainant approached Opposite Party No.1 for getting the same repaired but however, Opposite Party No.1 refused to get the printer in dispute repaired without any rhyme and reason. The contention that Opposite Party No.1 is not authorized dealer/ distributor of Opposite Party No.2 have no takers because no list of authorized dealers / distributors has been pressed in to service before this Forum to prove this fact. It appears that said plea has been falsely taken to dislodge the claim of the complainant.
- The other contention that the printer in dispute has been suffering from some manufacturing defect is, however, not tenable because no expert opinion has been produced on record to prove that fact. It is also not proved on record that the defect pointed out in the printer in dispute cannot be removed by means of repairs. In such situations, it can be presumed that the defect in the printer in dispute can be set right through repairs. Since, the printer in dispute is within warranty/ guarantee period which is not denied by the opposite parties, therefore, in our considered opinion opposite parties are under legal obligation to repair printer in dispute free of costs to the satisfaction of the complainant.
- Consequently, instant complaint succeeds and opposite parties are directed to repair the printer in dispute belonging to the complainant to the satisfaction of complainant within 30 days from the date of receipt of the order without charging any amount, failing, which the complainant shall be at liberty to get the order executed through indulgence of this Forum. Copies of the order be sent to the parties free of costs immediately and thereafter the file be consigned to the record room.
Announced in Open Forum Dated: 11.02.2016 (S.S. Panesar) President (Jaswinder Kaur) (R.D.Sharma) Member Member | |
