BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 26/04/2011

Date of Order : 30/01/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 214/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant purchased a laptop from the 1^st opposite party at a price of Rs. 24,500/-. While using the same the complainant came to know that before his purchase somebody had happened to use it, since the date shown in the system restore point was 17-03-2011 which was prior to the purchase of the laptop. Moreover, the deleted files in the recycle bin were created in February 2011. On 18-04-2011, the complainant approached the 1^st opposite party to get his grievances redressed. Though the 1^st opposite party agreed that the laptop was used prior to the sale, he did not take any steps in favour of the complainant. Thus, the complainant is before us seeking direction against the 1^st opposite party to refund the price of the laptop.

2. The version of the 1^st opposite party is as follows :-

On 02-02-2011, one Prasanth Varghese, Parayakkattil House, Pallithode. P.O., placed an order for purchasing a HP laptop and its accessories by paying Rs. 1,000/- by way of advance against the price of Rs. 24,521/-. The said Prasanth informed the 1^st opposite party that the complainant would come and purchase the laptop by paying the balance amount. Subsequently, since there was no response the 1^st opposite party contacted Mr. Prasanth. Accordingly on 04-04-2011 the said Prasanth along with the complainant came to the shop of the 1^st opposite party and purchased the same after perusing the working of the system by paying Rs. 21,000/-. As per the bill, the complainant has to pay a balance amount of Rs. 2,521/- after a discount of Rs. 500/-. The laptop purchased by the complainant was sold by the western IT Distributors to the 1^st opposite party on 31-01-2011. The allegation of the complainant that the laptop sold was a used one is false and baseless. The complaint is filed against the demand for the balance amount. On 14-04-2011, the complainant approached the 1^st opposite party and demanded refund of the price of the laptop after taking back the same alleging that the same is a used one. The 1^st opposite party refused to do so. That might have prompted the complainant to file this complaint. The complaint is devoid of any merit and is liable to be dismissed.

3. The contentions of the 2^nd opposite party is as follows :-

The 1^st opposite party is not an authorised dealer of the 2^nd opposite party and there is no privity of contract between the opposite parties. The 2^nd opposite party is neither responsible nor liable for the assurances given by the 1^st opposite party to the complainant in its independent capacity. The complainant has not contacted the 2^nd opposite party or its customer care centre at any point of time. The complaint lacks merits and so deserves dismissal.

4. The complainant was examined as PW1 and Exts. A1 and A2 were marked on his side. The witness for the 1^st opposite party was examined as DW1 and Exts. B1 to B8 were marked. Neither oral nor documentary evidence was adduced by the 2^nd opposite party. Heard the counsel for the parties.

5. The only point that comes up for consideration is whether the complainant is entitled to get refund of the price of the laptop from the 1^st opposite party?

6. Ext. A2 tax invoice would show that the complainant purchased a laptop from the 1^st opposite party at a price of Rs. 24,521/-. According to the complainant, the laptop sold by the 1^st opposite party in a used one and the 1^st opposite party sold the same misrepresenting it as a brand new one. To substantiate his contentions, he relies on the dates in the 'system restore point' and the 'recycle bin' in the laptop which according to him is prior to the purchase of the laptop.

7. The 1^st opposite party vehemently refuted the averments of the complainant and contended that one Mr. Prasanth booked the laptop on 02-02-2011 by paying Rs. 1,000/- and only on 04-04-2011, the complainant along with the said Prasanth came to the shop and purchased the laptop by paying Rs. 21,000/-. The 1^st opposite party stated that an amount of Rs. 2,521/- is still due from the complainant and on demand as a ruse the present complaint.

8. Primarily it is to be noted that apart from the contention in the complaint nothing is on record to prove the allegations of the complainant that the laptop sold by the 1^st opposite party to the complainant is a used one or rather a second hand one. The burden had been heavily on the complainant to substantiate his own contentions in this Forum. According to the Hon'ble National Consumer Disputes Redressal Commission, any person alleging a fact must establish the same by leading cogent evidence. It must be borne in mind that it is the complainant and nobody else who is to carry the ball in proving his case. (General Manager, Northern Railway and Others Vs. Dan Dayal Chaturvedi 2010 CTJ 1012 (CP) (NCDRC) ). Even according to the complainant, as per the complaint he is in possession of the best evidence ie. 'system restore point' and 'recycle bin' to prove the contentions, which is not forthcoming for no reasons stated or explained, wherein the complainant failed evidently.

9. Secondarily, the complainant does not have a case that the laptop supplied by the 1^st opposite party suffers from any manufacturing defect. During evidence, the complainant who was examined as DW1 conceded the same. It is not in dispute that the product is a genuine one manufactured by the 2^nd opposite party, so the 2^nd opposite party cannot be held responsible in any manner whatsoever.

10. Tertiary, the 1^st opposite party raised a contention that the complainant is liable to pay Rs. 2,521/- being the balance price of the laptop, they relied on Ext. B1 another copy of Ext. A1 in which purportedly the complainant acknowledged the debt. This does not amount to conclusive proof of the same on the face of records.

11. In such a case, it is made clear that in the lack of evidence, the complainant is not liable to pay any more amount to the 1^st opposite party towards the price of the laptop. Ordered accordingly.

Pronounced in the open Forum on this the 30^th day of January 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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