BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Satnam Parkash S/o Sh.Nirmal Singh, r/o # 352, M.S.Enclave, Dhakoli, Tehsil Zirakpur, District SAS Nagar, Punjab.

…..Complainant

                                      V E R S U S

1.       M/s Toshiba India Pvt. Ltd., P.C.Division, 6^th Floor, Dr.Gopal Dass Bhawan, Bara Khamba Road, Delhi.

2.       M/s Fast Track Computing Ltd., SCO No.63 & 70, Dakshin Marg, Sector 20-C, Chandigarh.

3.       M/s Intarvo, SCO No.2473, 2^nd Floor, Sector 22-C, Chandigarh.

                                                ……Opposite Parties

CORAM:     SH.P.D.GOEL                                    PRESIDENT

                   SH.RAJINDER SINGH GILL               MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA  MEMBER

Argued by:    Sh.Maninder Arora, Counsel for the complainant.

                        Sh.N.P.Sharma, Counsel for OP No.1.

                        OPs No.2 and 3 already exparte.

PER P.D.GOEL,PRESIDENT

1.           Briefly stated the facts of the case are that the complainant purchased Toshiba Laptop, Model L640 for a sum of Rs.38,500/- from OP No.2 on 21.2.2011 and soon after of its purchase, the laptop started giving problem i.e. booting, heating and hanging etc. The complainant approached the concerned dealer, who told that the hard disk is not working properly and it requires replacement. On 31.3.2011, the complainant approached OP No.3 for repair of the laptop and after 4 days, he took the delivery but again after 1 ½ week, the same problem occurred and he again approached to OP No.3 on 13.4.2011. He came to know that window of the laptop had been damaged. However, he took the delivery of his laptop after six days.

              It is the case of the complainant that in the middle of June, 2011, the laptop again started giving problem and he approached the service centre on 28.6.2011 for repair but till date the defect has not been rectified. The laptop is under the warranty period of one year.  The complainant is a student of MBA of IT Group of Institute, Patiala and due to fault in the laptop, he is unable to complete his project work. As per the complainant, the laptop is suffering from the manufacturing defect but the OPs failed to rectify the problem in the laptop. Hence, this complaint.

2.           OP No.1 filed the reply and took some preliminary objections, wherein, it has been stated that the laptop purchased by the complainant bears an International Limited Warranty (ILW) issued by OP No.1. As per the terms and conditions, the ILW issued by OP No.1 is a contract which binds the parties for the following, namely :

“LIMITATION

2. No liability is accepted for loss of profits or any consequential loss, loss of data, loss of software or the cost of software reconfiguration.”

The complainant after the purchase of laptop from OP No.2 raised a service concern with OP No.3 for the first time on 31.3.2011. The laptop was repaired and handed over to him on 5.4.2011. Thereafter on 13.4.2011,the complainant approached with the problem of software and the same was sorted out on the same day. Finally on 28.6.2011, the complainant again approached the OP for repair of laptop. When the laptop was repaired, he was duly informed to pick up the laptop but he failed to do so, despite repeated reminders through telephone and also on e-mail.

              It has been pleaded that the relief sought by the complainant for refund of the value of the laptop is inadmissible under the terms and conditions of the ILW issued by OP No.1. It has been further pleaded that the complainant has not filed any independent expert opinion to show that the laptop suffers from any latent/patent defects. On merits, it has been stated that OP No.1 is bound only by the terms and conditions of ILW being a concluded contract between the parties and further that the complainant has been provided complete and competent service by OP No.3 in this regard. It has been denied that the laptop had still not been repaired. It has been stated that the laptop was repaired by OP No.3 but despite repeated reminders, the complainant has failed to take back the laptop. It has been further pleaded that this Forum has no territorial jurisdiction to entertain the complaint qua OP No.1. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on their part and prayer for dismissal of the complaint with costs has been made.  

3.           OPs No.2 and 3 did not appear despite due service, hence they were proceeded against exparte vide order dated 17.8.2011.

4.           Parties led evidence in support of their contentions.

5.           We have heard the learned Counsel for the complainant and the learned Counsel for OP No.1 and have also perused the record. 

6.           The learned Counsel for the complainant contended that the complainant purchased Toshiba Laptop for a sum of Rs.38,500/- vide invoice - Annexure C-1 dated 21.2.2011 from OP No.2 and soon after of its purchase, the laptop started giving problem. The complainant was told by the dealer that the hard disk requires replacement, as such, he approached OP No.3 on 31.3.2011 for repair of the laptop and after 4 days, he took the delivery and again after 1½ week, the same problem occurred and he again approached OP No.3 on 13.4.2011 and took the delivery of laptop after six days. It was further argued that in the middle of June, 2011, the laptop again started giving problem, so he approached OP No.3 on 28.6.2011 for repair but till the filing of the complaint, the defect had not been rectified. The laptop is under the warranty period of one year.  It was lastly argued that the laptop suffers from manufacturing defect. The OPs have failed to rectify the problem in the laptop.

7.           The learned Counsel for OP No.1 very fairly and squarely conceded that the complainant purchased the laptop vide Annexure C-1, which carries an International Limited Warranty (ILW) issued by OP No.1 and as per the terms and conditions – Annexure R-1, no liability is accepted for loss of profits or any consequential loss, loss of data, loss of software or the cost of software reconfiguration. It was further argued that the complainant after the purchase of laptop on 31.3.2011 approached OP No.3 for its repair and the laptop was so repaired and handed over to him on 5.4.2011. Thereafter on 13.4.2011, the complainant again approached with the problem of software and the same was sorted out on the same day. The complainant again on 28.6.2011 approached for repair of laptop and the same was repaired by OP No.3. When the laptop was repaired, he was duly informed telephonically and also on e-mail to pick up the laptop but he failed to do so. It was further contended that the refund of the value of the laptop is inadmissible under the terms and conditions of the ILW issued by OP No.1 – Annexure R-1. It was lastly argued that the complainant has not filed any independent expert opinion to show that the laptop suffers from any latent/patent defects.

8.           It is an admitted fact that the complainant purchased Toshiba Laptop for a sum of Rs.38,500/- from OP No.2 on 21.2.2011 vide Annexure C-1. It is also an admitted fact that the complainant approached OP No.3 to cure the defect in the laptop on 31.3.2011 and 13.4.2011. It is also an admitted fact that the defect in the laptop was cured by OP No.3.

9.           It is also an admitted fact that again in June, 2011, the complainant approached OP No.3 to cure the defect in the laptop. The allegation of the complainant is that OP No.3 had failed to rectify the defect in the laptop.      On the other hand, the learned Counsel for OP No.1 submitted that the defect in the laptop has been rectified. When the laptop was repaired, the complainant was duly informed telephonically and also on e-mail but he failed to pick up the same. The learned Counsel for OP No.1 made a reference to e-mail Annexure R-2, wherein, it has been stated that the matter has been discussed many times on telephone. The laptop was ready since 5.8.2011, so the complainant was requested the collect the same. The learned Counsel for the complainant raised the arguments that vide Annexure R-2, the e-mail address of the complainant is incorrect. The said submission of the learned Counsel for the complainant has not been disputed by the learned Counsel for OP No.1. More so, the address given on e-mail – Annexure   R-2 did not tally with the e-mail address mentioned by the complainant in Annexure C-4 at page No.10. In view of this, it is held that the e-mail - Annexure R-2 did not reach to the complainant. Thus, OP No.1 has failed to prove on record that the request was made through e-mail – Annexure R-2 to the complainant to collect the laptop. Admittedly, the laptop is still lying with OP No.3.

10.         Undisputedly, the complainant has not produced any independent expert opinion to show that the laptop suffers from any latent/patent defects. It is settled proposition of law that without leading expert opinion to prove latent/patent defects in the laptop, its replacement cannot be allowed. The matter does not rest here. As per terms and conditions of International Limited Warranty (ILW) issued by OP No.1 – Annexure R-1, the refund of the value of the laptop is also inadmissible.

11.         As a result of the above discussion, the OP No.3 is directed to deliver the laptop to the complainant in a functional condition without any charges forthwith. The laptop was handed over by the complainant to OP No.3 to rectify the defect in it on 28.6.2011 and it has not been returned to the complainant till 23.12.2011, so the complainant is entitled for compensation and litigation costs as it is only on 23.12.2011, as reflected in the zimini order dated 23.12.2011 that Sh.Rajesh Kumar, Service Engineer of OP No.3 came present in the court along with laptop in question but the complainant did not accept it. So, OPs No.1 and 2 are directed jointly and severally to pay Rs.20,000/- to the complainant as compensation for the loss in the studies, mental agony and harassment and Rs.10,000/- as costs of litigation.

12.         This order be complied with by OPs        No.1 & 2 within one month from the date of receipt of its certified copy, failing which OPs No.1 & 2 shall be liable to pay the awarded amount along with interest @ 12% p.a. from date of filing of the complaint till its realization besides Rs.10,000/- as litigation costs.

13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.