Consumer Complaint No. 02 of 2016

Date of filing: 07.01.2016                                                                     Date of disposal: 03.10.2016

Complainant:               Samir Adhakari, S/o. Late Madan Mohan Adhikari, resident of Ghordourchatti, PO: Sripally, PS. & Dist: Burdwan, PIN – 713 102.

-V E R S U S-

Opposite Party:    1.     Papai Gift Varieties Stores, Represented by Proprietor, Mayabazar, B. C. Road (Opposite C.M.s. School), Burdwan, PS: Burdwan, PIN – 713 101.

2.      Lenovo Service Centre, Nokia Care (Everest Mobicare), Represented by Manager, 10, Lenin Sarani, Opp. Loreto School, Dharmatala, Kolkata – 700 013.

3.      Lenovo India Pvt. Ltd., Ferms Icon, Level – 2, Doddanekundi Village, Marathalli Outer Ring Road, Kr. Puram Hobli, Bangalore – 560 037, India.

Present:      Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                Ld. Advocate, Suvro Chakraborty

Appeared for the Opposite Party No. 1:  Ld. Advocate, Alaul Hossain Middah.

Appeared for the Opposite Party No. 2:  None.

Appeared for the Opposite Party No. 3:  Ld. Advocate, Anirban Mukherjee.

JUDGEMENT

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have supplied him a defective tablet from which defect could not be removed by the authorized service centre till filing of this complaint.

The brief fact of the case of the Complainant is that on 30.08.2015 along with his family members the Complainant went to the OP-1 for purchasing a tablet of Samsung brand, but the required set was not available at that time. The Complainant was asked by the OP-1 to purchase of another model or better model of Lenovo brand. The Complainant told that he has no idea about the use of tablet and as his daughter is using Samsung mobile hand set, hence she is more interested to purchase the tablet of Samsung brand. The seller was told by the Complainant that if he is able to show him the use of the tablet and specifications, then he can purchase tablet other than Samsung Company. The OP-1 told that it is impossible for him to open and show him the detail of Samsung tablet, as the Tablet of Lenovo Company is already in open condition. So he is able to show him the use of the said tablet. Upon perusing the specifications and as per consent of his daughter the Complainant decided and agreed to purchase the tablet of Lenovo Company. At that point of time as the Complainant did not have such consideration amount, the seller being a known person to him agreed to sell the tablet upon taking consideration amount partly and the Complainant promised to pay the remaining amount. The total value of the said tablet was of Rs.18, 400=00+Rs.1, 600=00 i.e. Rs.20, 000=00. For security purpose of the said tablet the Complainant obtained an insurance coverage from the OP-1. When the Complainant wanted to know about warranty, then he was told that the purchase bill tantamount to warranty for one year. There was no head phone with the said tablet as the Company did not supply any head phone with the Lenovo tablet. But after purchase when the OP-1 tried to insert a SIM Card in the said tablet, the OP-1 fell in trouble. Within ten days since its purchase problem cropped up in the said tablet and then and there the Complainant rushed at the OP-1. The OP-1 removed the defect with the help of the customer care/service centre. Due to this reason some important documents of the Complainant’s daughter was deleted. Upon making payment of the balance amount of Rs. 5, 000=00 the Complainant returned along with the said tablet along with related papers and documents. Again in the month of October, 2015 the tablet became inoperative as it was shown as ‘NO SIM’. After inserting the SIM it was shown as before. As during Puja the OP-1 remained closed, the Complainant went to the OP-1 on 28.10.2015 and deposited the said tablet. The OP-1 tried its best to remove the defects, but being failed decided to send the same to the authorized service centre-OP-2. As per advice the tablet was deposited by the Complainant at the service centre and he prayed for returning the same as early as possible after removing the defects. But the service centre could not remove the defects from the tablet. Thereafter in December, 2015 telephonic contact was made by the service centre with the Complainant when the service centre demanded Rs.350/- towards service charge and more amount for removal of the defects and for this reason the Complainant will not get any benefit under warranty clause. Upon receipt of such information the Complainant made contact with the OP-1 requesting to make payment of the necessary charges to the service centre and take delivery of the tablet after removal of the defects and the Complainant will pay the amount to the OP-1 directly. But after lapse of two weeks as the Complainant did not receive the tablet, he made contact with the service centre over telephone and the service centre asked for his e-mail number with a view to intimate him the approximate charges for repairing and it was also stated by the service centre that till date the tablet could not start its work. The Complainant requested the service centre to return the tablet in defective condition, but he was told that until and unless a sum of Rs.350/- is paid by him towards service charge, the service centre is unable to return the same and upon making payment of the said amount the tablet can be returned in the defective condition. Accordingly the Complainant requested the OP-1to deposit the said amount to the service centre, but the OP-1 did not extend its co-operation. According to the Complainant such action of the OPs can be termed as deficiency in service and as his grievance had not been redressed by the OPs before coming to this Ld. Forum, hence having no alternative he has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs either to replace the tablet with a new and defect free one or to return the amount as paid by him during its purchase, to pay compensation to the tune of Rs.30,000=00 due to mental agony, harassment and litigation cost of Rs.5,000=00 to him.

The petition of complaint has been contested by the OP-1 by filing written version contending that the OP-1 being a renowned establishment is carrying on business on good faith and trust for long period and the Complainant knowing fully well about the OP-1 approached before it for purchasing a tablet for his daughter. According to the choice of the daughter of the Complainant the Complainant purchased the Lenovo tablet being model no-Lenovo B-6000- H.V. Serial no-HBD 8 HF 25. Before purchasing the Complainant opened the box and after perusing the same carefully told the OP-1 to prepare the bill. Though the bill amount was of Rs.19,999=00 but as the said amount was not with the Complainant, hence the OP-1 told him to make payment of Rs.15,000=00 and remaining amount subsequently. The abovementioned cost was included the premium for the insurance. Being satisfied the Complainant purchased the said tablet. But due to mishandling the tablet became defective for which the OP-1 cannot be held liable. The Complainant on his own motion and wish deposited the tablet to the service centre for its necessary repairing and took the receipt and in this regard the OP-1 has no knowledge and moreover the OP-1 is less interested to know the discussion as held by and between the Complainant and the service centre. As the tablet is under the coverage of insurance, the Complainant will get reimbursement from the Insurance Company. As due to mishandling by the Complainant and his family members the tablet became defective, hence the Complainant is not entitled to get ant benefit under warranty clause. The Complainant by filing this complaint tried to grab some money through an illegal manner and hence this complaint is filed by him with mal intention. As there was no deficiency in service and/or unfair trade practice on behalf of the OP-1, prayer is made by the OP-1 for dismissal of the complaint with exemplary cost.

The petition of complaint has been contested by the OP-3 by filing written version contending that the allegations as made out in the complaint are baseless, false and concocted. The OP-3 has denied the allegations of the Complainant. It is stated by the OP-3 that the Complainant visited its authorized service centre for the first time on 10.12.2015. The engineer intended to take the SIM card out of the device in accordance with the prescribed technical procedure but before attending the same by the engineer, the Complainant himself pulled out the SIM card using a twizzer which damaged the SIM card reader. Thereafter the service centre informed the Complainant that the Customer Induced Damage (CID) is not covered under warranty terms and the tablet can be repaired only by paid service which the Complainant refused to avail. But showing good gesture the service centre repaired the tablet free of cost by replacing the required spare parts and offered the same to the Complainant, but the Complainant refused to accept the same. The tablet is in now perfect working condition at the service centre of the OP-3 and ready to return the same to the Complainant. As the OP-3 has repaired the tablet without taking any cost, hence there is no deficiency in service as well as unfair trade practice of this OP and for this reason the Complainant is not entitled to get any relief as sought for.

The Complainant and the OP-3 have adduced evidence on affidavit along with several documents in support of their respective contentions.

The Complainant challenging the evidence of the OP-3 has put some questionnaire and the OP-3 has replied the same accordingly on affidavit.

After admission of the complaint notices were issued by the Ld. Forum upon the OPs. But the OP-2 inspite of receipt of notice chose not to appear to contest the complaint. Hence the complaint was fixed ex parte against the OP-2.

We have carefully perused the record; papers and documents filed by the contesting parties and heard argument advanced by the Ld. Counsel for the contesting parties. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant purchased the questioned tablet from the OP-1 on 30.08.2015, the cost of the said tablet was of Rs.19,999=00 which includes the premium for insurance, the tablet was under the coverage of an insurance, the tablet was under warranty terms and conditions for the period from 30.08.2015 to 30.08.2016, the OP-2 is the authorized service centre of the OP-3, the tablet is of Lenovo product, inspite of inserting SIM card it was shown as ‘NO SIM’, for such problem the Complainant went to the OP-1, thereafter the Complainant approached before the OP-2 being authorized service centre of the OP-3 for removal of the defects, the tablet was deposited with the OP-2 by the Complainant on 10.12.2015, since then the tablet is lying with the OP-2, primarily the OP-2 demanded service charge and repairing charge from the Complainant, as the tablet was within warranty period the Complainant refused to pay any farthing to the OP-2 towards the claim, the OPs have failed to resolve the dispute before coming to the Court of Law, hence this complaint is filed by the Complainant praying for certain relief.

The contention of the OP-3 is that as the defects in the tablet has been cropped up due to mishandling the same by the Complainant, the service centre could not take any step to repair the same without any service  and repairing charges. According to the OP-3 as the Customer Induced Damage is not covered under warranty terms, the tablet can be repaired by the OP-2 only by paid service. The OP-3 has further submitted that showing its good gesture the service centre has already repaired the said tablet free of cost by replacing the required spare parts and intimated the Complainant to accept the same, but the Complainant refused the same and without obtaining the repaired tablet from the OP-2 has filed this complaint with ulterior motive. Prayer is made by the OP-3 for dismissal of the complaint.

The case of the OP-1 is that it is mere a seller of the product, so it has no liability either to repair or to replace the questioned tablet purchased by the Complainant. As there is no deficiency in service and unfair trade practice on behalf of the OP-1, prayer is made for dismissal of the complaint.

Now it is clear that the OP-2 being the authorized service centre of the OP-3 has already repaired the questioned tablet without taking any charge from the Complainant. If that be so, why the service centre did not discharge its liability before coming to the Court of Law by the Complainant and why the service centre demanded charges from the Complainant for its necessary repairing knowing that the tablet is within the warranty period. From the record it is revealed that within a very short span from its purchase the tablet became defective and the OP-2 took much time to remove its defect and in the meantime warranty has already been expired. We have noticed that the tablet is still lying under the custody of the service centre and hence it is clear that the tablet remained with the OP-2 during almost the warranty period. It is stated that inspite of getting information the Complainant did not take any step to accept the repaired tablet from the OP-2. But the OP-3 has failed to produce any cogent document from which it is evident that the Complainant was intimated by the OP-2 through written correspondences. It is the settled proposition that before the Court of Law either telephonic or verbal intimation does not stand at all. Therefore as the tablet is ready to return after its necessary repairing and replacement of some spare parts, hence the Complainant is directed to accept the same from the service centre of the OP-3 without making any payment as early as possible after being satisfied with the service. Be it mentioned that as the Complainant could not use/enjoy the tablet for a quite considerable period within warranty period, hence the OP-s shall take step to extend the warranty period for another one year from the date of receipt of the tablet from the OP-2. Admittedly due to deficient service of the OP-2 and 3, the Complainant had to face mental agony, harassment, so in our view the Complainant is entitled to get compensation and by filing this complaint the Complainant has incurred some expenses and for this reason he is also entitled to get litigation cost from the OP-3 being the principal of the OP-2.

Going by the foregoing discussion, hence, it is

O r d e r e d

that the complaint is dismissed against the OP-1 on contest and ex parte against the OP-2 without any cost and allowed on contest with cost against the OP-3. The Complainant is directed to approach before the OP-2-being the authorized service centre of the OP-3 to accept the repaired tablet within 20 days from the date of passing of this order. The Complainant is further directed not to make any payment to the OP-2 for such repairing and/or replacement of the required spare parts of the questioned tablet. In case of any dissatisfaction of the Complainant in respect of the tablet, the OP-3 shall replace the questioned tablet with a same new and defect free one within 20 days  from the date of such dissatisfaction, if any of the Complainant, in default the OP-3 shall refund the cost of tablet as paid by him during its purchase to the tune of Rs.19, 999=00 along with interest @ 6% p.a. from the date of making such payment/date of purchase till realization of the entire amount along with the interest to the Complainant. The OP-3 shall extent fresh warranty terms and condition for another one year from the date of receipt of the tablet by the Complainant from the authorized service centre. The OP-3 is further directed to pay a sum of Rs.2, 000=00 as compensation due to mental pain, agony, harassment and litigation cost of Rs.1, 000=00 to the Complainant within 45 days from the date of passing of this order, in default the Complainant will be at liberty to put the entire order/decree in execution as per provision of law.   

Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

              (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                     President       

                                                                                                           DCDRF, Burdwan

                      (Silpi Majumder)                                          

                        Member                                                      

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                           Member                                           Member    

                                                     DCDRF, Burdwan                               DCDRF, Burdwan