Tamil Nadu

North Chennai

70/2014

Mrs..Saranya Vijayakumar,R.Anbuselvan both are residing at - Complainant(s)

Versus

Rep by its Director,M/s.Apple India Pvt Ltd - Opp.Party(s)

M/s.S.Doraisamy

11 Feb 2016

ORDER

 

 

 

                                                                        Complaint presented on  :  28.03.2014

                                                                    Order pronounced on  :  11.02.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

THURSDAY THE  11^th   DAY OF FEBRUARY 2016

 

C.C.NO.70/2014

 

 

1. Mrs. Saranya Vijayakumar,
2. R.Anbuselvan,

Both are residing at

AF. 88/3, 4^th Avenue,

Shanthi Colony Main Road,

Anna Nagar, Chennai – 600 040.

 

                                                                                                 ..... Complainants

 

..Vs..

	1.M/S. Apple India Private Limited, Represented by its Director, 19, Floor, Concorde Tower C, UB City No 24 Vittal Mallya Road, Bangalore 560 – 001.     2.M/S. Netcom Solution Chennai, Represented by its  director, No. 29/13, Medavakkam Tank Road, Ayanavaram, Near Kellys, Chennai – 600 023.         3.M/S. F1 Info Solution & Services Pvt Ltd., (Authorized  Service Provider) Represented by its Director, F1 Info Solution &  Services Pvt. Ltd., New No: 81/1, Vasu Street, Behind EGA Theatre, Kilpauk, Chennai – 600 010.
	...Opposite Parties

Date of complaint                                  07.04.2014

Counsel for Complainant                      :M/S.S.Doraisamy

Counsel for 1^st  Opposite party                :K.Harishankar

 

Counsel for  2^nd  & 3^rd Opposite Party    : Ex parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

       The  1^st Complainant purchased “Apple Macbook AIR 13”  Lap Top from the 2^nd Opposite Party  for a consideration of Rs.77,300/- and gifted the same to her husband, the 2^nd Complainant for his business purpose. The said Lap Top was manufactured by the 1^st Opposite Party and the  3^rd Opposite Party is the authorised service provider of the 1^st Opposite Party. The Complainants purchased the  said Lap Top mainly for the purpose of business use of the  2^nd Complainant.  Within few months from the date of purchase of said Lap Top, it started to develop several problems such as “Battery not detected, internal display issue Main Logic Board (MLB)”.On 25.07.2013 the above said Lap Top was handed over to the  3^rd Opposite Party and  who had  diagnosed the said Lap Top made an entry in the Service Report as “MLB need to be Replaced” and consequently new MLB vide part No.661-6055 was replaced.  Again the very same problem persisted and the Complainant  handed over the said Lap Top  to the 3^rd Opposite Party  on 20.11.2013 and now the said product is with him and it is not functioning. The Warranty period for the Lap Top is one year from the date of purchase i.e. from 02.03.2013 to 01.03.2014. The Complainant   unable to utilize the said Lap Top and the purpose for which it was purchased was defeated and the Complainants have suffered huge loss in their business and suffered with mental agony, hardship and inconvenience.  They have estimated their loss under all heads, nominally at Rs.1.00 crore for the Deficiency in Service of the Opposite Parties. The Complainant caused a notice dated 02.01.2014 by registered post with acknowledgement due, through their lawyer to the Opposite Parties calling upon them to compensate for their above acts and the notice sent to the 1^st and 3^rd Opposite Party were received by them. The notice sent to the 2nd Opposite Party returned as “Intimation delivered/Not claimed.” The acts of the Opposite Parties are nothing but an unfair trade practice and therefore the Complainant is entitled for compensation from the Opposite Parties. Hence the Complainant filed this Complaint seeking compensation to a sum of Rs.10,00,000/- with cost of the Complaint.

 

 

          2. The 2nd & 3^rd Opposite Party  were remained absent and they were set Ex- parte.

3. THE WRITTEN VERSION OF THE 1^ST IN BRIEF:

          There is no manufacturing defect in the MacBook purchased by the Complainants. The product was facing problem with the Main Logic Board (MLB) of MacBook  and the same was  duly replaced by the 3^rd Opposite Party within the warranty period. After receiving the  notice dated 2^nd  January 2014 from the complainant’s lawyer, the answering Opposite Party tried to get in touch with the complainant’s Lawyer but did not receive any positive response. The complainant was facing problem with the Main Logic Board (MLB) of the Macbook and the same was replaced and the error was duly rectified within the warranty period by the 3^rd Opposite Party. Presently, the Macbook is in perfect working condition and  the same is lying with the  3^rd Opposite Party, as the Complainants has refused to collect the same.  There is no Deficiency in Service or subsistence of any reason for claiming any damages by the Complainants in the present case, as neither the 1^st Opposite Party nor its authorised service provider has ever denied any service to the Complainants. The liability of a manufacturer arises when there is inherent defect in the product and it is a settled position of law that manufacturer cannot be made liable unless and until it is proved by adducing expert evidence that there was any manufacturing defect and the same has not taken by the Complainants so far. Hence this Opposite Party prays to dismiss the Complaint.     

4. POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite parties?

          2.Whether the complainant is entitled to any relief? If so to what relief?

 

5.POINT:1

          The admitted facts are that  the  1^st Complainant purchased “Apple Macbook AIR 13”  Lap Top from the 2^nd Opposite Party  for a consideration of Rs.77,300/-  under Ex.A1 and gifted the same to her husband, the 2^nd Complainant for his business purposes and  the said Lap Top was manufactured by the 1^st Opposite Party and the  3^rd Opposite Party is the authorised service provider of the 1^st Opposite Party and the complainants purchased the  said Lap Top mainly for the purpose of business use of the  2^nd Complainant.

          6. According to the Complainants within few months from the date of purchase of said Lap Top, it started to develop several problems such as “Battery not detected, internal display issue Main Logic Board (MLB)”.On 25.07.2013 the above said Lap Top was handed over to the  3^rd Opposite Party and  who had  diagnosed the said Lap Top that the “MLB need to be Replaced” and consequently new MLB vide part No.661-6055 was also replaced which is evidenced under Ex.A2 service report and again on 20.11.2013 for the very same problem he has  handed over the said Lap Top  to the 3^rd Opposite Party  and now the said product is with him and it is not functioning due to the Deficiency in Service of the Opposite Parties.

          7. The 1^st Opposite Party contended that  there is no manufacturing defect in the product and the problem of MLB was rectified at first instance and handed over to the Complainants and on 20.11.2013 the product was handed over to the 3^rd Opposite Party  facing same issue and the 3^rd Opposite Party issued Ex.A3 service report saying need to check and after checking  the defect in the product was rectified and  ready for delivery and however the Complainants have not taken the product inspite of that the  product is working in a good condition  and therefore  the Opposite Parties have not committed any Deficiency in Service and further the product is used  in the business for earnings and therefore the Complainant  cannot be regarded as a Consumer and prays to dismiss the Complaint.

          8. Admittedly the Lap Top product is in the custody of the 3^rd Opposite Party which was entrusted by the Complainants for service. The 1^st Opposite Party would contend that the product is rectified and now is in working condition and it is the Complainants who have refused to take delivery of the product. On the other hand the Complainants would contend that the product is lying with the 3^rd Opposite Party is not in working condition. As the Complainants entrusted the product for service to the 3^rd Opposite Party on 20.11.2013 under Ex.A3, he should have followed the service provider whether the product is serviced and kept ready. Nowhere in the Complaint  or in Ex.A4 notice pleaded that he enquired with the service provider  and came to know   that the  product was not  serviced and  ready for delivery. On the other hand the 3^rd Opposite Party serviced the product and kept ready for the use of the Complainants.  The Complainants without enquiring about the rectification of the defect of the product from the service provider, issued Ex.A4 notice and thereafter filed the Complaint is only fault of the Complainants. The Complainants should have issued notice only after  refusal of the Opposite Party to rectify the product.  In the case in hand is not such a position and therefore the Complainants have not proved that the product is having any defect.

          9. The Opposite Party would contend that the Complainants are not the Consumer, since they have used the product for business purpose and thereby earned income and therefore prays to dismiss the Complaint. The Complainants would contend that the 1^st Complainant gifted the Lap Top to her husband, for doing his business and the earnings out of the said business is only for their livelihood and therefore the Complainants would fall within the definition of Consumer and prays to allow the Complaint.

10.The Complainants themselves categorically pleaded in the Complaint  in para 3 as follows:

          The 1^st Complainant states that after purchase of the said Lap Top she gifted the same to Mr.R. Anbuselvam, the 2^nd Complainant herein who is none other than husband of the 1^st Complainant, for his business purposes.

in  para 5 as follows:

  the 1^st Opposite Party about the functioning and specifications of the said Lap Top, only the Complainants ventured into to purchase said Lap Top mainly for the purpose of business use of 2^nd Opposite Party.

in para 9 as follows:

  they have been effectively prevented from doing  the works and put to untold sufferings, which cannot be measured in terms of money, however they estimated their loss under all heads, nominally at Rs.1.00 crore for the Deficiency in Service.

The above pleadings clearly proves that the Lap Top was purchased for doing the business activities of the 2^nd Complainant and the 2^nd  Complainant  also used the product for the very same purpose and therefore the Complainants have purchased and  used the product for commercial purpose  as per explanation to  section 2(1)(d) of the C.P.Act  and therefore the Complainants will not be regarded as Consumer.

          11. However, the Complainants contended that they are Consumers and for that purpose they relied on the orders passed by the National Commission reported in IV (2013) CPJ 140(NC) (Alok Kumar Roy Vs. Head of the Sales & Service (Lap Top Computer) Hewlett Packard India Sales Pvt. Ltd., and The Proprietor Demesne)   and in IV (2014) CPJ 287 (NC) (Kushal K.Rana Vs.DLF Commercial Complexes Ltd.,). The facts in the Alok Kumar Roy case is that the Complainant lost his job opportunity at US because he could not use his Lap Top as the same is defective and such contention was not accepted by the National Commission and also it was held that if his Lap Top goes out of order for a short period, he had other alternative for internet access through various internet/Cyber Cafes. In the case in hand after entrusting the product for repair/service the Complainants had not taken any steps to verify whether the product is rectified or not and on the other hand the 3^rd Opposite Party rectified the product and kept ready for delivery and  it is the Complainants who have not taken delivery of the product for their use and therefore the order of the National Commission do not apply to the facts of the case in hand.

          12. The National Commission held in IV (2014) CPJ 287 (NC)  para 22 as follows:

       An individual proprietor can run the business for his own and his family benefits or he can earn his livelihood by transacting any business, as per explanation appended to Section 2 (1)(d)(ii) of C.P.Act, 1986.

It is    settled position that even a person  earning by doing a small scale industries business or a proprietor business  for his livelihood certainly he will fall under the definition of Consumer as held by the National Commission as above. The National Commission held in I(2014) CPJ 332(NC)  (LORDS WEAR PVT.LTD., VS.RANCE COMPUTERS PVT.LTD.) in para 5 as follows:

Nowhere in the Complaint it has been pleaded that Managing Director-Kishore is running business in the name of Complainant for earning his livelihood and in such circumstances, its cannot be inferred that Managing Director-Kishore was running business for earning his livelihood.

 Therefore, the settled position is that earning from business for livelihood has to be pleaded in the Complaint. Whereas in the case in hand there is no such pleading that the Complainants purchased the product for earning their livelihood through their business and in the absence of such pleading in the Complaint that the 2^nd Complainant used his Lap Top in his business for earning his livelihood is not accepted. On the other hand, it is pleaded in the Complaint that the product was purchased only to carry on business of the 2^nd Complainant and it is further pleaded that due to the defects in the product they have been prevented from doing their works and they estimated loss of money nominally at Rs.1.00 crore. A person who sustained loss in the business for Rs.1.00 crore clearly establishes that the 2^nd Complainant doing the business not for his livelihood and on the other hand it is held that his earnings in his  business is only a commercial profit and therefore he cannot be considered as a Consumer within the definition of the C.P.Act.

          13. Since it is concluded that the 2^nd Complainant is not a  Consumer  and also found that even after the product was rectified by the 3^rd Opposite Party, the Complainants have not taken delivery of the product, it is held that the Opposite Parties 1 to 3 have not committed any Deficiency in Service and accordingly this point is answered.  

14. POINT:2

          Since the Opposite Parties 1 to 3 have not committed any Deficiency in Service, the Complainants are not entitled for any relief  in the Complaint  and the Complaint is liable to be dismissed without cost.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th day of February 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex. A1 dated 02.03.2013                  Invoice issued in favour of the 1^st Complainant

Ex.A2 dated 25.07.2013                   Service Report of the 3^rd Opposite Party

Ex.A3 dated 20.11.2013                   Service Report of the 3^rd Opposite Party  photo

                                                   Copy

 

Ex.A4 dated 02.01.2014                   Notice from Complaints Advocate to the Opposite

                                                   Party with postal Receipt original copy

 

Ex.A5 dated 06.01.2014         Acknowledgement card from the 3^rd Opposite

                                                    Party

 

Ex.A6 dated  NIL                    Returned postal of the 2^nd Opposite Party

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex.B1 dated 16.01.2014                   Reply mail from Opposite Party no.1 to

                                                Complainant

 

Ex.B2 dated  NIL                    Transcripts of the conversation recorded between

                                                the executive of Opposite Party no.1

 

MEMBER – II                                                               PRESIDENT