KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 253/11

JUDGMENT DATED : 19.11.11

PRESENT:

SHRI.S. CHANDRA MOHAN NAIR                   :  MEMBER

M/s Sony India Pvt. Ltd.,

A company incorporated under the

Companies ct, 1956 having its

Registered Office At

A-31, Mohan Cooperative Estate

Mathura Road, New Delhi – 110044                 :  APPELLANT

(By Adv. J.S. Saju)

Vs

1.      Rajendra Dalal

718 & 718/APJ Towers,

Dalal Street, Mumbai – 400001.

( R1 by Adv. Baldev. G. Waddhwa)

                                                                    :  RESPONDENTS

2.      The Proprietor

          Fridge House,

Near Malabar Christian College,

Kannur Road, Kozhikode – 673 001.

JUDGMENT

SHRI.S. CHANDRA MOHAN NAIR             :  MEMBER

The order dated 15.11.10 of CDRF Kozhikode in CC No. 303/06 is being challenged in this appeal by the 1^st opposite party. By the impugned order the appellant is under directions to replace the Sony Vaio Lap Top to the complainant with compensation of Rs.10,000/- and cost of Rs.1,000/-. However, the compensation and cost are liable to be shared by the 1^st and 2^nd opposite parties.

2.      The complainant has approached the Forum stating that he has purchased a Sony Vaio Lap Top from the 2^nd opposite party which is manufactured by the 1^st opposite party for a sum of Rs.97,990/-. It is his case that the DVD player in the lap top was not functioning from the very beginning. He has also alleged that inspite of repairs, the DVD player was not functioning and that the CD combo drive was also noisy and though he had asked for the replacement of the lap top, the opposite parties failed in replacing the lap top. It is his further case that as per the warranty condition, if defects occurred in the 1^st  year, the 1^st opposite party is liable to replace the lap top. Alleging deficiency in service and unfair trade practice, the complaint was filed praying for directions to the opposite parties to replace the lap top with a new one or in the alternative to refund the amount of Rs.97,990/- with 18% interest from the date of

purchase till payment along with compensation of Rs. 3,00,000 and costs of the proceedings before the Forum below.

3.      The opposite parties resisted the complaint by filing version. The 1^st opposite party submitted before the Forum that the Sony Vaio Lap Top sold to the complainant was free from any defect and that the allegation of manufacturing defects etc are only made for undue enrichment and also that the area service in charge, Mr.Santhosh Thomas had visited and inspected the lap top and found that the DVD player was working perfectly. Contending for the position that the complaint is ill motivated and unsustainable, the 1^st opposite party prayed for the dismissal of the complaint with costs. 

4.      The 2^nd opposite party supported the contentions of the 1^st opposite party. It was further submitted that the 2^nd opposite party never assured the complainant, that the lap top could be replaced as there was no defect in the lap top. The allegations against the opposite parties were strongly refuted by the 2^nd opposite party also.

5.      The evidence consisted of the documents marked as Exts. A1 to A10 on the complainant’s side. The Forum below appointed a commissioner to examine the defects if any in the lap top and the report of the commissioner was marked as Ext. X1.

6.      Heard both sides,

7.      The learned counsel for the appellant/ 1^st opposite party argued before us that the order of the Forum below is perse illegal and unsustainable as the same is passed without proper appreciation of the evidence in the case.  He has submitted that the lap top was purchased for commercial use and hence the complaint was not maintainable before the Forum. The learned counsel advanced the further contention that an authorized representative of the appellant had inspected the lap top in dispute and found that there was no defect to the lap top. He has canvassed for the position that even the expert appointed by the Forum had not found out any manufacturing defect in the lap top and hence the order of the Forum below to replace or refund the price cannot be sustained. It is his further case that the Forum below had awarded compensation and cost without any basis and he argued for setting aside the order of the Forum below.

7.      On the other hand, the learned counsel for the respondent/complainant submitted that the DVD player of the lap top was non functioning from the very beginning and the 2^nd opposite party had assured the complainant to replace the lap top with a new one and that the inspection by the authorized representative of the 1^st opposite party would show that the lap top was defective. It is also his case that the Forum below has rightly found that the opposite party had failed to produce the inspection report of the authorized representative even though the complainant had filed an IA seeking the production of inspection report. It is also his case that the failure on the part of the opposite party to produce the report would call for the presumption that if the report was produced, it would be against the opposite parties and in such a situation the order of the Forum below directing the 1^st opposite party to replace the lap top with compensation and cost is only to be upheld.

8.      On hearing both sides and also on perusing the records we find that it is the admitted case of both the parties that the complainant had purchased the lap top in dispute from the 2^nd opposite party for Rs.97,990/- and that the said lap top was

manufactured by the 1^st opposite party. The allegation of the complainant that the DVD player was not functioning though disputed by the opposite parties is confirmed by the expert commissioner who inspected the lap top subsequently. The expert would also say that as the service report of the representative of the 1^st opposite party was not produced, he was not able to say the correct position of the lap top at the time of purchase in 2005. It is seen that the commission report is dated 16.6.08 and even on that date, the DVD combo drive was in a non functional stage. How ever, on a perusal of the warranty condition produced as Ext. A2 it is seen that as per the 2^nd condition the company shall either repair or replace within a period of 1 year. The complainant would say that he wanted replacement of the lap top. It is the settled position that a replacement of a product can be ordered only on finding manufacturing defects in the product. In the instant case apart from the finding that the DVD player was not functioning properly no other defects are raised by the complainant. The Expert commissioner has also not stated that the lap top was suffering from any manufacturing defects. In such a situation the opposite parties can only be directed to repair the lap top free of cost to the satisfaction of the complainant. All the same it is to be believed

that the DVD player was not functioning from very beginning and it existed even on the date of inspection by the expert commissioner. In such a situation it is our considered view that the opposite parties are liable to repair the defects in the lap top free of cost and pay compensation for the sufferings and agony endured by the complainant. It is to be seen that one purchases a new lap top for trouble free use. In the instant case, the alleged defect was there from the very beginning and the complainant has to be compensated for the said defects. It is felt that an amount of Rs. 25,000/-  will be just and proper to be ordered as compensation to the complainant along with the directions to repair the lap top and cure all the defects  free of cost within 1 month from the date of receipt of this order. It is made clear that if the opposite parties fail to rectify the defects they will be liable to abide by the directions contained in the order of the Forum below.

In the result, the appeal is allowed in part with the modifications indicated above. Thereby the 1^st opposite party is directed to rectify the defects in the lap top free of cost and pay compensation of Rs.25,000/- within 1 month from the date of receipt of this order

failing which the 1^st opposite party is directed to replace or refund the price within another 1 month. In that event, the 1^st and 2^nd opposite parties are also directed to pay compensation of Rs.10,000/- and cost of Rs.1,000/- as ordered by the Forum below. As far as the present appeal is concerned the parties are directed to suffer their respective costs.

The office is directed to send back the LCR to the Forum along with a copy of this order.

S. CHANDRA MOHAN NAIR       :  MEMBER

DA