INTHE PRESIDENT, DISTRICT CONSUMERS DISPUTE REDRESSAL FORUM, SAMBALPUR

C.C. No.8 of 2016

        Suman Sourav Patra,

Aged about 21 years,

S/o  Gridhari Patra,

Resident of Samraipur, P.O.- Gelpur

Dist-Bhadrak (Odisha)                                                            ……………… Petitioner

-VERSUS –

1. Neelam Dhawan, (MD)

Hewlett Packard India, Sales Pvt. Ltd., 24 Salapuria Arena

Hosur Main Road, Adugodi, Bangalore – 560030

2.    Rupam Halder, (Case manager India)

       Hewlett Packard India Sales Pvt. Ltd.,DLF IT Park, Tower ‘C’

       First Floor, Kolkata – 700156

3.    Kaushal Kumar (Asst. Manager, Ecommerce)

       DBM Marketing  (I) Pvt. Ltd.  Plot No. 676  pace city-2  sector 37

       Near Hero Honda Chowk,

       Haryana, Gurgaon- 122004.                                                        .………….. Opp. Parties

       For Complainant               :           Saroj Kumar Mohanty, Adv.

       For O.P.s No.1 & 2          :         

        PRESENT:-  SHRI A.P. MUND, PRESIDENT

                              SMT. S. TRIPATHY, MEMBER

                              SHRI K.D.DASH, MEMBER

Date of Order: 18.06.2018                                 

Shri A.P. Mund, President

            The case of the complainant is that;

1. The complainant being a Medical Student  of VIMSAR Burla and being in  need of  a laptop  set, made up his mind to purchase a laptop from HP;  because  HP has  occupied a unique place in this business. So, the complainant put an order before DBM marketing (i) Pvt. Ltd and accordingly DBM delivered the Laptop Sl. No.  5CD5254CSV(DOA)  after fulfilling  all the formalities from the complainant.
2. After receiving the system on 21.09.2015 it was detected by the complainant that the same one is a defective and made incessant effort for replacement of the defective one. Having no alternative way DBM marketing replaced the defective one on 13.11.15.
3. The complainant made a complaint immediately after detecting the second one also defective and it was also admitted by Expert engineer sent by HP and the remark was “there is a defect in display”.
4. The officials of HP forced him to handover the set for inspection at Kolkata and accordingly the set was handed over to HP on 8.12.15.The set was returned with dilapidated condition on 7.1.16 bearing Sl. No. 5CD5254D47.
5. According to the complainant, the O.P’s have replied in their counter that the set is neither has any manufacturing defect nor deficiency in service. It is clear that this is a manufacturing defect because it was detected at opening stage.
6. The O.P’s  have also mentioned in their counter” the complainant had purchased the laptop, after being satisfied with the condition of the same & its performance “. But it’s quiet opposite. The HP distributor with cantankerous intention does not want to replace the defective one for the  second time but otherwise pushing  the purchaser in trouble. It  is duty of the O.P to provide new one taking the defective laptop back. They return the laptop after lots of request on 7^th January without fixing any problem. Instead they told the laptop is alright.

PRAYER

The complainant prays for;

1. Laptop of same or upgraded model of good quality
2. A compensation of 3,50,000  INR only for loss of study, mental agony and harassment which is too nominal as per his loss.
3. Apology letter from MD of HP for their continuous harassment and misbehavior.
4. If the series of model is found faulty then it must be taken from the users who complained regarding the same with full compensation.
5.  Further prayed  not to dismiss opposing party No. 1 & No. 2 before they being answerable.

Documents filed by the complainant ;

1. Invoice of Both Laptops.
2. Worksheet report of onsite visit by engineers (6 nos.).
3. DOA letter by HP.
4. Emails from seller and HP.
5. Letter from HP service centre.

7. The O.P’s. No. 1 & 2 appeared and filed their version.  First they filed an application U/S 13(3)(b) of Consumer Protection  Act, 1986 along with affidavit wherein they have mentioned.
8. The definition of “Person” as defined in the General Clauses Act, 1897, reads as under:-“Person” shall include any company or association  or body of individuals, whether incorporated or not.”
9. The O.P No. 1 & 2 therefore submit that, if the Complainant has any alleged grievances in respect of the subject laptop or its display, then the cause of action lies only against Hewlett Packard India Sales Pvt. Ltd. and Managing Director and the Case Manager mentioned have nothing to do on this said issue because no cause of action has arisen in respect thereof.

On the above the O.P. No. 1 & 2 prays for;

10. The managing Director of Hewlett Packard India Sales Pvt. Ltd and the case Manager of Hewlett Packard India Sales Pvt. Ltd i.e. O.Ps No. 1 and 2 herein be deleted from the cause title of the petition of complainant filed before this Hon’ble court and the said O.Ps No. 1 & 2 be expunged from the instant proceedings.  Though this petition was filed was never moved. Hence no order was passed on the petition.
11.  In their version  O.P. No. 1 & 2 averred that Hewlett Packard India Sales Pvt. Ltd company (herein after referred to as the answering opposite party) is  a company duly incorporated under the provisions of the Companies  Act, 1956 and having its registered office at No. 24, Salarpuria Arena, Hosur Main Road, Adugodi, Bangalore 560030. The answering  opposite party is a global renowned manufacturer of various types of computers, laptops, printers,  scanners and other IT  peripheral components (‘Product’)  are globally acclaimed  for its class and quality. It is submitted that the products manufactured by the answering opposite party pass through stringent quality checks and test trials before the actual start of the commercial production. The products are manufactured and marketed after being approved by the appropriate authority which is highest body to certify the IT products and go through a process of quality inspection before the same is dispatched to the authorized channel partner for sale on a ‘principal to principal’ basis.
12. The answering O.P. is well supported by the excellent authorized channel partner and service centers, having excellent setup for after sales servicing of its products, which are manned by qualified and experienced personnel. It is submitted that the customers of all the products manufactured by the answering O.P.  are provided services through a large network of authorized  channel  partners  and service centers. The network of such service centers is being continuously enhanced and widened in order to bring maximum and efficient services as closer to the customer’s doorsteps   as far as possible.  It is stated that a dedicated all India Tool Free helpline no (Monday to Friday) 9 am to 6 pm (excluding public holidays) has been also provided to the customers for attending to any service/repairs, thus providing assistance to the customers in distress  situation. Every procedure for service/repairs is standardized and procedures are laid down for the service centers for carrying out necessary services/repairs /replacement as may be required. The answering opposite party has carved a niche for themselves in the products as well as in after sales service across the globe.
13. The complainant has made  misconceived and baseless allegations of the display of the laptop being defective without  relying on any expert report from a recognized and notified  laboratory  u/s. 13 (1)  of the C.P. Act 1986 and deficiency  in service without any documentary evidence in support of the allegations made in the complaint.
14. That  the section 13 (1) (C) of the C.P. Act  1986  states as “ where the complaint alleges a defect in goods, which  cannot be determined without proper analysis or test of the goods, the District forum shall  after  obtaining a sample of the goods, send it to appropriate  laboratory with a direction that such laboratory  make  an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect.”  The answering O.P.  submits that the allegations of the complainant in absence of an expert report, miserably fails and the instant complaint deserves to be dismissed. This O.P.  herein  relies on the judgement of the Hon’ble National Commission  in the case of K L Arora Vs. Groovy communications (2002)   3 CPF 92 (NC)  for the necessity of expert evidence to prove the submissions of  manufacturing defects  in the display of the laptop made in the complaint.  The answering O.P.  craves leave to file an affidavit of the service engineer, being the expert to prove that the  complainant allegations are baseless and unjustified. Hence,  this Hon’ble forum in absence of an expert report on behalf of the complainant, have to direct the complainant to produce an expert’s  report in support of his allegations, as provided in sec. 13 (1) (C)  of the Act above  and in absence of the same, the allegations of the complaint  cannot be established and the instant complaint ought to be dismissed with costs.
15. That the laptop bearing Sl. No. 5CD5254CSV purchased by the complainant, which was reported for issues was detected with hardware issues, hence the answering O.P.  had declared the unit Dead on Arrival and was replaced with a new laptop bearing Sl. No. 5CD5254D47, the complainant had reported the same issue of blur display in the replaced laptop upon which the product specialist team of the answering O.P have diagnosed the unit and have confirmed that the replaced laptop is absolutely fine and working as per specifications. That it is only the complainant’s apprehension and expectation for replacement along with compensation has failed to agree on the working status of the laptop. The answering O.P. is ready and willing to demonstrate the performance of the laptop before the Hon’ble Court that there are no issues in the laptop as alleged, the laptop is working fine.
16. As already stated supra, the answering O.P.is ready to demonstrate the performance of the unit through a service engineer before the Hon’ble Court to establish that the unit is working fine and to confirm to the court that there is no issue as reported by the complainant.  The answering O.P is not liable for replacement of the laptop or to pay the exorbitant amounts claimed towards compensation without any justification moreover the same is not permissible under the warranty policy of the answering O.P..
17. The O.P. has been prompt and swift to attend to the alleged grievances reported by the complainant under the warranty as and when reported. Therefore, the prayers as made by the complainant replacement of the laptop with a new laptop are untenable and unsustainable. In the case of S. Pattabiraman Vs. Sp St. Palaniappan 1994 (2) CLT 261 (NC), the Hon’ble National Commission held that, “there was no deficiency of service on part of the O.P. The service was rendered from time to time. The service was also satisfactory in as much, the laptop bearing Sl. No. 5CD5254CSV purchased by the complainant, which was reported for issues was detected with hardware issues was declared as Dead on Arrival and was replaced with a new laptop bearing Sl No. 5CD5254D47 to the satisfaction of the complainant.” In view thereof, the complainant seeking for the replacement   of the  laptop with a new laptop is contrary to law and is untenable.
18. Further the O.P’s averred that this Hon’ble Forum, while considering the prayers as sought for by the complainant in the present complaint, ought to keep in mind the well established principle laid down by the Hon’ble S.C. in the case of Bharti Knitting Co. Vs.  DHL Worldwide Express Courier (1996) 4 SCC 704, whereby it was held that when the complainant signs the contract documents, he is bound by its terms & conditions and the onus would be on him to prove the terms &  the circumstances, in which he has signed the contract. The same would be evident from the relevant  clause of the warranty, which states as- “To the maximum extent permitted by applicable law, in no event shall HP or its supplier’s be liable for any special, incidental , indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or coincidental or other information, for business interruption, for personal injury, for loss of privacy  arising out of or in any way related to the use of or inability to use the  software product) even if HP or any  supplier has been advised of the possibility of such ;damages and even if the remedy fails of its essential purpose.”  Hence, the complainant is debarred from claiming any compensation, damages and litigation costs from the answering opposite party.
19. Further, it is averred that, the Hon’ble forum has no jurisdiction u/s. 11 of the consumer Protection Act to entertain, try and adjudicate the present complaint. The section 11 (2) of the Act clearly states that,
20.  “A complaint shall be instituted in a District forum within the local limits of whose jurisdiction,-

(a) the O.P. or each of the O.P’s  where there are more than one, at the time of the institution of the  complaint, actually and voluntarily resides or carries on business, or has a branch office or personally works for gain; or

(b) any of  the O.Ps, where  there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain provided that in such case either  the permission of the District Forum is given, or the O.Ps who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such  institution.

(c)That in the present complaint, the opposite parties are neither residing having a branch office or they are carrying any business within the territorial jurisdiction of the Hon’ble forum. Hence, this Hon’ble forum lacks territorial jurisdiction to adjudicate upon this issue and the complaint is liable to be dismissed.

On the basis of the above prays for that since the complainant has failed to make out a prima facie case against the answering opposite party, the instant complaint of the complainant be kindly dismissed against the opposite parties No. 1 & 2.  It is strenuously denied that there is any case of deficiency in service is established against the opposite parties no. 1 & 2.  it is submitted  that the averments/prayers are bald, frivolous, misconceived and made without  any merit and the instant complaint merits dismissal of the complaint with costs.

No documents filed by O.P. No. 1 & 2.

Only filed citations & written arguments.

In para II of their written version O.P’s have cited various judgements in support of their contention.

1. National Consumer dispute redressal commission, Ashok  Bhan, President and B.K. Tainmi, Member. Maruti Udyog Ltd. Vrs. Nagender Prasad Sinha & Anr.       
2. Revision petition Nos. 074  of 2004 and 678 or 677  of 2004
3. K.S. Gupta, President Member & Rajyalakshmi Rao, Member.
4. The Head Post Master Ponnani Kerala & Ors. Vrs. V.Ayyappan.
5. Supreme Court of India L.M. Sharma, CJ and S.Mohan J. Civil appeal No. 7330  of 1993  decided on 7.12.93, IOCL vrs. Consumer Protection council, Kerala,
6. V. Balakrishna Eradi, J. President, Mr. Y. Krishan and B.S. Yadav, J, Members First Appeal No. 63 of 92  decided on 10.1.94 , Dr. Purushottam Nagar,  vrs.Zonal Manager, UCO Bank, Jaipur & another .
7. S.C. of India Civil appeal No. 8699  of 2002 from judgement and order dt. 15.4.2002  Dilawari Exporters Vrs.  Alitalia Cargo & others.
8. S.C of India B.N. Agrawal & G.S. Singhvi, JJ. C.A No. 3501 of 2004 & others, National  Insurance Co. Ltd. Vrs Harbhajan Lal
9. 2005  CTJ 484 (CP)  NCDRC L &T Ltd. And another Vrs. Sahuwala Cylinders Ltd.  & others.
10. 2005 CTJ 798 (CP) (SCDRC) Zenith Computers Ltd. Vrs.  Dr. A. Jacob Thomas and another.
11. SC of India   S. Saghir Ahmad and R.P sethi, JJ. Civil appeal No. 8701  of 1997  Ravneet Singh Bagga Vrs. M/s.  KLM Royal Dutch  Airlines and another.
12. SC of India   S. Saghir Ahmad and R.P sethi, JJ. Civil appeal No. 8716  of 1997  Oriental Insurance Co. Ltd. Vrs. Samayanallur Pry. Agricultural Coop. Bank
13. NCDRC- D.K. Jain, President, Mrs . m. Shreesha, Member M/s Wipro Ltd.  Vrs. Surendra Singh Chana & Ors. First appeal No. 244  of 2009.
14. NCDRC,  Mr. Justice V.K. Jain, Presiding member, Revision petition No. 2677 of 2015 Negi Sign systems And supplies Co. Vrs. Rijulize Jacob.
15. NCDRC Mr. Justice V.. Jain, Presiding Member – Revision petition No. 2732  of 2011 decided on 19^th Jan. 2016 Deep Hospital & Research Centre vrs. Yogesh.
16. SC of India Altamas Kabir & Cyriac Joseph, JJ . C.N. Anantharam Vrs. Fiat  India Ltd. & Ors.

Heard from the side of complainant. The O.P. No. 1 &2 have filed their version & written argument raising various legal issues. The O.Ps have buffressed their argument by citing various decisions as per citation.

The complainant has a simple case. He bought a laptop which was defective. The O.P’s replaced it. According to the complainant the replaced laptop also had the same problem,. The  service engineer came several times, could not rectify it, the laptop was taken to Kolkata & returned without servicing.

According to the complainant this is deficiency & he should be compensated according to his prayer.

The O.P’s argument was gone through.  They have raised several issues

1.  Can  a case be filed against person concerned  & not against the company?
2. There is no privity of contact as there is principal to principal relationship between the manufacturer and the dealer. U/s. 13 (1) (c) of the C.P. act whether expert opinion as envisaged  is applicable in this case or not.
3. That this forum lacks jurisdiction as per section 11 (2) (a) & (b) of the C.P. Act.
4. Whether the O.P’s 1 & 2 are liable to replace the laptop   as well as payment of compensation as per complaint of the complainant.

These above points are basic issues which are answered as follows:-

Issue  No. 1-

After the filing of written version along with petition u/s. 13 (3) (B), the complainant amended the complaint petition, without objection. Certain minor mistakes were detected in the petition and such mistakes are found to be not intentional.

 In the W.A filed by him he has correctly arrainged the manufacturer as party through different persons. Hence it can be clearly held that without prejudice to any party, the case was filed against the company through designated persons.

Issue  No. 2 -

In all the cases cited it is a common feature that there is involvement of the dealer. The dealer has unilaterally taken action on behalf of himself or acted against the interest or direct prohibition of the company.

            The above cited decisions can be distinguished while applying to the present case.  In this case the manufacturer is the supplier through his own agent i.e. O.P. No. 3 the service engineer had come to rectify the defects complained by the complainant.

Once, on the recommendation of the service Engineer, the laptop was replaced. The same problem persisted with the replaced laptop. For which the service engineer visited the complainant’s hostel 8 times.

After  he could not rectify the defect, the  same was shipped to the  Kolkata office. There the laptop was kept, for one month without service. The complaint could retrieve it after much pursuation  & harassment. .

            This does not speak well of a well known and reputed company in the field of  manufacturing a branded product.

            There is no dealer involved in this case hence this case is clearly distinguished from the one at hand. The O.P’s  have  culled out  sentences from the general observation made in the cited cases. But reading overall the cited cases the facts do not match.

            Hence the O.Ps are practicing  literal fraud on this  forum for which they should be penalized. Hence 1^st part of issue No. 2 is decided against the O.P’s.

Besides they are  hiding behind the expert opinion  clause 13 (1) (c)  of being  tested.

            In para 4,5  of their W.V. the O.P’s have  raised the issue that person named is not  personally liable. To this allegation the complainant amended the plaint and arranged the company through their designation which was not challenged further. Hence this objection is overruled. 

The O.P’s have advertised about their product & service in para 4  & 5 in their written version.  This is beyond the scope of this forum. This forum is to examine whether the product complained in this case is defective or not. And the O.P’s have rendered proper or defective service.

As per their own admission, the O.P’s have replaced the laptop once. This is against the spirit of averment of para 4 & 5. After the replacement the complainant has complained, again against the replaced laptop. This was attended to by the service engineer which is evident from the job report of various days. At last as the service engineer failed to rectify the defect, the Laptop was taken to Kolkata. The version of complainant is that he had to retrieve the laptop after long pursuation. For this the complainant was  abused by the  O.P’s  personnel.

The above facts is borne out from documents and goes against the averment of the O.P’s in para 4 & 5 of W.V. The O.P’s have suppressed these facts and come up with an averment in para 13 of the W.V that as the complainant has not got expert opinion as per section 13 (1) (c)  of C.P. Act 1986, the case may be dismissed. .

We have perused the documents &  are satisfied that in this case there in a continuous process of defect  removal by  the O.P’s service Engineer. Finally it was taken to Kolkata where also the problem was not resolved. Hence we are satisfied that by not acting as per section 13 (1) (c )  does not vitiate the proceeding.

The O.P’s  have failed to convince us that sec 13 (1) (c) in any way invalidates the case of the complainant as their own engineer  certified the  problem in the  job sheet which was not resolved.

Beside the O.P’s in their averment has categorically stated that they will produce the service engineer concerned to enlighten this Forum.  The O.P’s 1 & 2 failed to participate. Did not produce the Engineer rather they have suppressed the fact about the visit to the complainant for around 6 times to rectify the defects.

This speaks volumes regarding having sales and service people who are good for nothing. The O.P’s had gone in length to suppress fact which are relevant. Hence issue no. 2 in whole is answered against them.

Issue No. 3 -

The O.P’s have cunningly quoted section 11 (2)(A) of the C.P. Act which only iterates that as to how the cases should be filed against the O.P’s. They have ignored 11 (2) (C) which has a bearing in this case i.e. case can be filed where “the cause of action arose”.

According to this case, the laptop was ordered from Burla, delivered at Burla, replaced at Burla and the replacement was serviced at Burla.  The case is filed within the jurisdiction of this Forum.

The O.P’s  have suppressed these facts and only highlighted sec 11 (2) (A)  which goes in their favour & basing on the above avers that  this  forum lacks jurisdiction.

Applying  section 11 (2)(C) we hold that the argument advanced by O.P’s  are fallacious.  This forum has jurisdiction to  try the case as borne out by the facts.  

Issue No. 4 -

Taking an overall view of the above 3 issues we hold that O.P’s as company is liable to replace the laptop as well as pay compensation to the complainant.

Hence it is ordered that there is privity of contract between the manufacturer and the complainant. The O.P’s 1 & 2 are guilty of providing a defective laptop (laptop with blurred display) which they are bound to replace with product which is of good quality and same configuration. Besides the O.P’s by their action has damaged the purpose for which the laptop was bought.  On this count they should pay a sum of Rs. 50,000/- which we think will suffice for the sufferings undergone by the complainant.

The above is to be carried out within a period of 30 days of passing of this order failing which the O.P’s will pay interest @ 12% from the date of order till payment.                                                                 

                  Sd/-                                                                                        .            Sd/-

SHRI A.P.MUND, I agree                                                                     SMT S.TRIPATHY

   PRESIDENT                                                                                           Member                

.

.                 Sd/-                                                                                               Sd/-   

 SHRI K.D.DASH.  Member  I agree.                                             Dictated and corrected by me.

                                                                                                                 Member.