BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 11^th DAY OF SEPTEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs.1 & 2 to jointly and severally refund Rs.21,250/- being the price of the Laptop and compensation of Rs.50,000/- for inconvenience caused.

2. The brief averments made in the complaint are as under:

The complainant purchased a Laptop manufactured by OP-2 and marketed by OP-1 for a sum of Rs.21,250/-.  Within a period of one month of purchase the complainant noticed lot of defects and therefore the same was sent for repairs to the authorized service center of OP-2.  That even after the repairs, the Laptop was not free from defects and hence complainant was unable to use the same.  The complainant brought the same to the notice of the OPs through e-mails.  However, the OPs failed to address the defects therefore the complainant was put to lot of inconvenience and was unable to use the Laptop.  That the complainant requested the OP-2 to replace the said Laptop with a new Laptop of the same configuration, free from defects.  But the OPs so far have failed to replace the said defective of Laptop.

The complainant thereafter issued a notice dated 03^rd July, 2014 to the OPs calling upon them to refund Rs.21,250/- together with damages of Rs.50,000/-.  Though the OP-1 sent a reply but failed to address the damages in the Laptop and comply with the demand of the complainant.  OP-1 submitted a reply dated 15^th July 2014 wherein they have categorically refused to take any action in pursuance of the notice issued by the complainant and asked the complainant to take up the matter with OP-2.

The conduct of the OPs in not replacing the said Laptop with a new defect free Laptop, amounts to deficiency in service on their part.  Both the OPs are jointly and severally liable either to replace the said Laptop or pay the price of the same to the complainant.

For the aforesaid reasons, the complainant prays for an order directing OPs.1 & 2 to jointly and severally refund a sum of Rs.21,250/- to the complainant and pay him damages of Rs.50,000/- for the inconvenience caused to him.

3. In response to the notice issued, OP-1 appeared through their advocate and filed their version contending in brief as under:

The OP-1 is a private limited company incorporated under the companies Act, 1956.  The OP-1 is an online retail seller and one of the registered sellers on the marketplace website www.flipkart.com and has acquired good market reputation for its range of products and exceptional customer support.  The complainant has filed the above complaint with a malafide intention to harass this OP.  The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine.  That the grievance of the complainant should have been only against the manufacturer i.e., OP-2 as the product carries manufacturer’s warrantee.  As a retail seller the involvement of OP-1 in the entire transaction is limited to selling the products of various manufacturers and in the instant case the manufacturer is OP-2.  There is no deficiency in service on the part of OP-1.  The OP-1 is not the manufacturer of the product in question and has no knowledge or facility to ascertain whether the product in question is defective because of manufacturing defect or customer abuse.

The complainant has purchased the said Laptop for a sum of Rs.21,250/- from this OP.  The said product was delivered to the complainant in a sealed box condition as it was received from OP-2 and hence this OP by virtue of being the reseller cannot be held liable for alleged defects in the products.  The OP-1 who is a dealer or reseller cannot be held liable for defect in the product in view of the legal position laid down by Apex Court in Hindustan Motor Ltd., and another Vs. N.Sivakumar (2000) 10 SCC 654 and in case of Abhinandan Vs. Ajit Kumar Verma and others (2008) CPJ 336 (NC).  Therefore this complaint is not maintainable against the OP-1.

For the aforesaid reasons, the OP-1 prays for dismissal of the complaint as against them with compensatory cost.

4. The OP-2 also appeared through their advocate in response to the notice issued and filed their version.  The sum and substance of their version is as under:

The present complaint is a gross abuse of process of law.  The complainant has not approached this Forum with clean hands.  The present complaint is false, frivolous, misconceived and vexatious in nature and has been filed with a sole intention to harass the OPs.  It is true that the complainant has purchased a Laptop computer on 26^th December 2013 and for the first time a complaint call was logged with OPs in month of May 2014 for keyboard issue wherein the service engineer diagnosed the machine and found that the keyboard and the upper case required to be replaced under warranty and thus have ordered the parts on 06^th May 2014 as the same was not readily available and on receipt of the parts have replaced the keyboard and the upper case and closed the complaint to the satisfaction of the complainant on 21^st May, 2014.  Thus the authorized service engineers of OP-2 had repaired the Laptop computer free of cost as per warranty terms and the same is functioning satisfactorily.  That after 21^st May 2014 no further complaint was received by the OPs and as such there is no cause of action to file the instant complaint as neither there is any deficiency in services nor any unfair trade practice on the part of the OPs.

The OP-2 provides base warranty of one year to its customers at the time of purchase of desktop/laptop computers.  Further it also provides technical support and arranges for quick repair and services under the warranty period for its wide range of products provided the consumer follows the procedure mentioned in the warranty terms.  Where ever a product does not function as warranted during the warranty period, the purchaser may obtain warranty service by contacting the Lenovo or an approved service provider.  In the instant case, the service provider of OP-2 had duly repaired the complainant’s Laptop under warranty, free of cost, by replacing the keyboard and upper case.  Therefore, there is no deficiency of service on the part of OP-2.

The complainant had used the Laptop without any hindrance for more than four months from the date of purchase and after that the Laptop computer has developed issues with keyboard which was duly attended to by replacing the required parts and no further complaint was received by the OPs.  Therefore, the Laptop cannot be termed as faulty or has inherent manufacturing defect which warranted replacement of a new Laptop/refund of the cost of Laptop computer.

For the aforesaid reasons, OP-2 prays for dismissal of complaint with exemplary cost.    

5. On the rival contention of the parties to the complaint, the points that arise for our determination in this case are as under:

        6. The complainant to substantiate the allegations made in the complaint filed his affidavit by way of evidence.  The OPs also filed their respective affidavit evidence.  Complainant as well as OPs has filed their written arguments.

7. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of the parties, the documents produced by both the parties.

8. Our answer to the above issues are as under:

REASONS

9.  Admittedly the complainant in pursuance of the advertisement noticed on the web under the domain name

10. The OP-1 contended that it is not the manufacturers of the products and has no knowledge or facility to ascertain whether the product in question is defective because of manufacturing defect or customer abuse.  Therefore, they are not liable either to replace the said Laptop computer or liable to pay any compensation to the complainant.  It is further contended by the OP-1 that the said product was delivered to the complainant in a sealed box condition as it was received from OP-2 and hence OP-1 by virtue of being a reseller cannot be held liable for any alleged defects in the product.  It is further contended that the statement of transaction between the complainant and the OP-2 are not within the knowledge of OP-1 and therefore OP-1 is not in a position to respond to the same.

11. The OP-2 has produced the copy of the warranty issued to the complainant along with the Laptop in question.  In the warranty the procedure has been prescribed as to how to obtain the warranty service.  It has been stated therein that if at all the product does not function as warranted, during warranty period the purchaser may obtain warranty service by contacting Lenova or an approved service provider.  The list of such service providers and the telephone numbers are available at

“If your Service Provider determines that it is unable to repair your product, your service provider will replace it with one that is at least functionally equivalent.

If your Service Provider determines that it is unable to either repair or replace your product, your sole remedy is to return the product to your place of purchase or to Lenovo for a refund of your purchase price”.   

12. In the instance case on hand the first complaint was logged on 06^th May, 2014 i.e., after more than four months from the date of purchase of the Laptop for certain issues with keyboard.  No material has been placed by the complainant to substantiate his contention that he faced certain problems with the said Laptop computer within a month from the date of purchase as alleged in the complaint.  Though the complainant did not produce the copy of the service call report, but OP-2 has produced the copy of the service call report at Annexure-B, which discloses that for the first time the complainant recorded his complaint regarding the keyboard issues with Lenovo service center on 06.05.2014 and the said Laptop was attended and the service engineers have repaired the Latptop free of cost as per the warranty terms by replacing the keyboard and the upper case and closed the complaint on 21^st May 2014.  The complainant did not dispute the correctness of the service call report at Annexure-B produced by OP-2.

13. The complainant alleged that subsequent to the repairs attended by the authorized service center again he encountered certain issues in the said Laptop.  In his affidavit filed by way of evidence, the complainant alleges that within a period of one month of purchase, he noticed lot of defects like: unable to type the letters in the defective keyboard, unable to connect the printer, scanner, hard drives, CD/R, DVD, flash memory, external mouse, pen drive because of the defective USB port and therefore he sent the said Laptop for repairs to the service center of OP-2.  It is pertinent to note that the complainant has not specified the nature of defects he found in the Laptop in the complaint.  Though the complainant alleges several defects in the Laptop in his affidavit evidence but the copy of the service call report produced by the OP-2 does not record any such defects in the Laptop except the defects in the keyboard.  The complainant did not produce relevant documents to substantiate that apart from defect in the keyboard there were other defects in the said Laptop as stated by him in his affidavit.

14. The complainant never complained regarding any other defects in the Laptop except the issues with the keyboard to the OPs.  Therefore, it cannot be believed that the said Laptop had defects as mentioned in the affidavit evidence of the complainant other than the defect in the keyboard.  More over the issue with the keyboard has been attended by the service engineer of OP-2 and the keyboard as well as the upper case has been replaced free of cost to the satisfaction of the complainant on 21^st May 2014.  Though the complainant alleges that he again noticed several defects in the computer subsequent to the repairs by the service center of OP-2 but fails to specify the kind of defects he noticed in the Laptop.  Even he does not specify the said defects in his affidavit evidence.  It is also pertinent to note that the complainant has also not complained to the authorized service center of OP-2 regarding any such defects in the Laptop/computer and did not handover the same for rectification/repairs of such defects to the authorized service center.  There is no explanation from the complainant as to why he did not logged any official complaint with the authorized service center of OP-2 regarding the alleged defects noticed by him subsequent to 21^st May 2014.  Even in his e-mail sent to OP-2, the complainant has not specified the defects allegedly found in the system except stating that there are multiple defects in the system.  The engineers of the authorized service center have offered to service the system and replace the parts if necessary free of cost.  However, the complainant has not handed over the Laptop computer to the service center for the repairs prior to filing the complaint.  The complainant did not get the Laptop computer examined by the experts and obtained report to show that the said Laptop suffered with serious defects warranting the replacement of whole of the Laptop.

15. The relevant portion of Lenovo Limited warranty extracted above provides that, if the service provider determines that it is unable to repair the product the service provider will replace it with one that is at least functionally equivalent.  Further it provides that, if the service provider determines that it is unable to either repair or replace the said product, the purchaser’s sole remedy is to return the product to the place of purchase or to Lenovo for refund of the purchase price.  It is apparent from the conduct of the complainant that he has not acted in terms of the Lenovo Limited Warranty and submitted the said Laptop in question for repair to ascertain as to whether OPs can repair the Laptop or replace the said product.

16. It is apparent that the complainant had not made use of the terms and conditions of the warranty issued along with the said Laptop computer.  Without submitting the Laptop computer for repairs and without getting it examined by the service provider the complainant cannot allege that the said Laptop suffered with any serious manufacturing defects thereby making it impossible to make use of the same.

17. The complainant has also not made any application U/s.13 (c) of Consumer Protection Act, for getting the Laptop examined by any experts or any laboratory for proper analysis of the product with a view to find out as to whether the said Laptop suffers from any defect as alleged in the complaint.  Therefore in absence of credible material on record as stated above, we are unable to believe the allegations of the complainant that the said Laptop has any major defects warranting either its replacement or refund of the price of the same.

18. The Learned Advocate for the OP-2 placed reliance on the judgment referred in a case between Classic Automobile Vs. Lila Nand Mishra & another I (2010) CPJ 235 (NC), Sukhvinder Singh Versus Classic Automobile & Another I (2013) CPJ 47 (NC) and argued that the complainant has miserably failed to provide any credible evidence that the Laptop in question had any serious manufacturing defect warranting its replacement.  The Learned Advocate also placed reliance on a ratio laid down by the Hon’ble Supreme Court in case of Maruti Udyog Ltd., Versus Susheel Kumar Gabgotra & Another (I) 2006 CPJ 3 (SC) and argued that the complainant since has failed to establish any manufacturing defects in the Laptop in question after first repairs cannot claim for replacement of the same or refund of the price of the Laptop.

19. Perused the citation referred supra.  In the instant case on hand the complainant miserably failed to establish that the Laptop in question developed any serious defects subsequent to the repairs done on 21^st May 2014.  The complainant has not submitted the said Laptop for repairs to the authorized service center to ascertain as to whether it cannot be repaired or need to be replaced in view of the terms and conditions of the warranty.  In our opinion the OP-1 is not liable to answer the claim of the complainant.  OP-2 who is liable to answer the claim of the complainant has successfully demonstrated by producing relevant records that the complainant is not entitled to any of the reliefs sought by him.

20. The complainant in support of his case relied upon certain judgment rendered by the Hon’ble National Consumer Disputes Redressal Commission.  The ratio laid down in the said judgments cannot be made applicable to the case on hand since the facts of the case dealt therein are entirely different from the facts of the case on hand.

21. In view of the discussions made above, we are of the opinion that the complainant has miserably failed to prove that the Laptop/computer in question had any major manufacturing defects and required to be replaced by OP-2.  He has also miserably failed to prove that he is entitled for the price of the said Laptop.  Therefore, we are of the opinion that the complaint is liable to be dismissed.        

22. In the result, we proceed to pass the following:     

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.

The parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of September 2015)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Complainant                 -        Sri.Harikrishna S. Holla,

                                            Bangalore-560 009.

                                                V/s.

Opposite Parties           -        1) M/s W.S Retail Services Pvt Ltd.,

Bangalore-560 068.

2) M/s. Lenovo India (P) Ltd.,

K.R Puram Hobli, Marathalli,

Bangalore-560 037.

Represented by its

Managing Director.

Witnesses examined on behalf of the complainant dated 05.12.2013

1. Sri.Harikrishna S Holla

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-1 dated 26.02.2015

1. Mrs.Anushree Saksena

Witnesses examined on behalf of the Opposite party-2 dated 26.12.2014

1. Alex Chandy

Document produced by the Opposite party-2:

MEMBER                          MEMBER                      PRESIDENT

Vln*