BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 18th day of February 2020
Filed on : 23-03-2018
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. V. Ramachandran, Member
Smt. Sreevidhia T.N. Member
CC.No.140/2018
Between
V.M. Baby : Complainant
S/o. Mathai, 43/1625, (By Adv. Neethu Reghukumar,
St. Benedict 1st Cross Road, 66/1149, Kalabhavan roam,
Ittoop Towers, Old Railway Station Cochin-18)
Ernakulam North,
Cochin-682 018.
And
- Kenichiro Hibi, : Opposite parties
Managing Director, (By Adv. Navod Prasannan
Sony India Pvt. Ltd.,A-18, Navodaya , Law Solutions, A4 & B2,
Mohan Co-operative Vaniyakizhakel, Road, Ernakulam-
Industrial Estate, Matahura 682 018)
road, New Delhi,110044.
- M/s. Sony India Pvt. Ltd., 2nd Floor, JNR City Centre, No. 30, Rajaram Mohan roy Road, Sampangirama Nagar, Bangalore-560 027. Rep. by its Managing Director.
- The Manager, M/s. Sony Center,
Ravipuram, M.G. Road,
Ernakulam, Cochin-682 016.
- The Manager,
M/s.Madona Care Centre,
Sony Authorized Service
Centre, Allens Cube,
Door No. 31/346-D,
Paradise Road,
Janatha Junction,
Vytila, Cochin-682 019.
O R D E R
Cherian K. Kuriakose, President.
Complainant’s case
The complainant purchased a laptop Sony Vaio bearing serial no. 0000267 manufactured by the 2nd opposite party M/s. Sony India Pvt. Ltd., the laptop was purchased from the 3rd opposite party M/s. Sony centre on 10-03-2017 as per invoice no. SIR16-81505, for a price of Rs. 45,000/-. The 1st opposite party is a managing director of the 2nd opposite party company who had manufactured the laptop, The complainant had presented the laptop to his son as a special surprise gift and he presented it to him in the presence of certain guests and his own family members. To his surprise when the laptop was switched on it was found not working and he was disparaged before the guests. Immediately the complainant contacted the 3rd OP dealer and as per his advice, the complainant had produced the laptop before the authorized service centre, M/s. Madona care centres Vytila, the 4thOopposite Party. On inspection it was informed by the service personnel that there was some major problem in the laptop and the system was handed over to the 4th OP as per job sheet No. J 70698567 dated 22-03-2017. The 4th opposite party prepared a job sheet with a finding that the laptop was already repaired on 13-02-2017, even before the complainant had purchased the same.
When the complainant had contacted the 3rd opposite party it was informed that they are not aware of any such repair and that they had effected the sale of the product supplied by the 2nd opposite party/ manufacturer. The opposite parties had committed Unfair Trade Practice by selling are repaired product with inherent defects as new one, without disclosing that fact, to the purchaser. The 4th opposite party even after accepting the laptop for repair failed to disclose that the laptop was repaired earlier. The complainant came to know the previous repairs only on the issuance of the computer generated job card. The complainant approached the 3rd opposite party and asked to take back the defective laptop and to refund the price of the laptop with compensation. “The complainant had issued a letter on 30-03-2017 to the 4th opposite party service centre of the 2nd opposite party and they had asked the complainant to provide his bank account details which was also given. After one month, the 2nd opposite party had sent a letter to the complainant dated 03-05-2017, denying the complainant’s legitimate claim and seeking approval for repairing the laptop. The complainant who was not willing for repair for the unused laptop purchased by him had issued a legal notice on 17-06-2017 the opposite parties 1 to 3 and the 2nd opposite party replied that letter on 11-09-2017 raising baseless contentions and expressing his willingness to refund only Rs. 45,000/- , and that too after a long period of his purchase, without acceding to the genuine demands of the complainant. The opposite party had no real intention to pay any amount to the complainant, as the complainant was asked to produce the laptop by a letter dated 11-09-2017, despite knowing the fact that the laptop was in the custody of the 4th opposite party. The complainant could have been given the cheque by registered post by the 2nd opposite party. The complainant therefore seeks the refund of the cost of defective laptop amounting to Rs. 45,000/- with interest @ of 18% p.a. from the date of purchase till realization in addition to a claim of Rs. 2,00,000/- towards compensation under various heads and Rs. 15,000/- towards the costs of litigation.
2. Notices were issued to the opposite parties, the opposite parties 2 to 4 had accepted the notice issued by registered post. Opposite parties 1 to 4 appeared and filed a joint version contenting inter alia as follows:
3. The version is being filed by Ms. Meena Bose who has been authorized by the 2nd opposite as per resolution dated 04-07-2011. The complainant purchased the subject laptop on 10-03-2017 from the 4th opposite party after a detailed demonstration of the features and functions along with detailed explanation of all the warranty terms and conditions regarding the laptop. The laptop was purchased by the complainant at a discounted price since the laptop was a refurbished one. It was sold at a heavy discount on the price list of Sony Viao laptop. The actual price of the laptop on 18-06-2013 was Rs. 65,238/- . The complainant was aware of the actual price . There was no intention on the part of the opposite parties to sell a used tap top to the complainant. He accepted the laptop knowing fully that it was a refurbished one. The opposite party had provided only a limited warranty for one year .The complainant approached the service centre on 22-03-2017, raising an issue of “OS not found”. Upon inspection, it was observed that the hard disc needs to be replaced. In order to resolve the issue, the service centre had offered the complainant to repair the said laptop free of costs. The complainant had sent a legal notice based on false claims. Under the warranty condition the opposite party need to repair the defective part and replacement of the whole system is only a last resort. In this case even though the opposite party was prepared to do free of cost services, the complainant was not wiling. The complaint is therefore unfounded and seeks dismissal.
4. On the above pleadings the following issues were settled for consideration.
i. Whether the complainant had proved that there were inherent manufacturing defects to the laptop while he purchased it.?
ii. Whether the complainant had proved that the opposite parties had committed unfair trade practice and deficiency in services?
iii. Reliefs and costs.
5. The evidence in this case consists of the proof affidavit filed by the complainant as PW1 and Exbts. A1 to 8 on the side of the complainant and Exbts B1 to B7 documents on the side of the opposite parties.
6. Issue Nos. i and ii. It is the specific case of the complainant that the laptop was not functioning at all from day one of its purchase. The complainant denied the suggestion of the opposite party while being examined as PW1, that there was an agreement between the complainant and the opposite party to accept Rs. 45,000/- as per the understanding. There is no dispute to the fact that the complainant purchased the laptop on 10th March 2017 from the 3rd Opposite Party dealer, on payment of Rs. 45,000/-. The argument of the learned counsel for the opposite parties that the complainant was aware of the fact that the laptop was a refurbished one cannot be acknowledged, in view of the absence of evidence to show that there was any such intimation of that fact was given to the complainant, through exhibit. A1 invoice. Exbt. A1 is silent with regard to any such disclosure of fact that the laptop sold to the complainant was a refurbished one. At the same time, as per Exbt. A1 it can only be inferred that the complainant had purchased a brand new laptop from the 3rd opposite party as per the invoice, Ext. A1. Nothing is shown in Exbt. A1 to bring out that the laptop was given to the complainant at a discounted price. After getting the legal notice by the 1st and 2nd opposite parties the 2nd opposite party manufacturer had intimated the complainant that they are willing to make a refund of the invoice amount and a cheque was already been drawn for Rs. 45,000/- with No. 805592 dated 20-07-2017. The complainant was asked to carry the accessories along with the defective laptop in order to collect the cheque, as seen from Exbt. A2. Prior to issuance of Exbt. A2 on 11-09-2017, on 3rd May 2017 the opposite party had intimated the complainant, as per Exbt. A3, that the opposite parties manufacturers are not in a position to comply with the request for refund but are ready to replace the faulty hard disc. When Exbt. A2 read along with Exbt. A3 dated 03-05-2017, it can be seen that the cheque for Rs. 45,000/- allegedly prepared by the manufacturer on 20-07-2017 for Rs. 45,000/- was not collected by the complainant, is only an afterthought and is made without any bonafides. No copy of the cheque allegedly prepared is forthcoming in evidence. It is to be noted that the complainant had issued the manufacturer with legal notice dated. 17-06-2017 demanding refund of the purchase price along with Rs. 10,000/- towards cost and consequences, and it was thereafter Exbt. A3 was issued in response thereto, refusing the claim of the complainant for refund of the purchase price. Exbt. A7 is another legal notice issued on behalf of the complainant demanding the complaints of demands made in the noticed dt. 17-06-2017. The notice was accepted by the manufacturer 2nd opposite party as per Exbt. A8. The complainant filed the complaint on 23-03-2018 when there was a long silence on the part of the 1st and 2nd opposite parties in response to Exbt. A7 notice.
7. It was argued on behalf of the opposite party that the liability of the opposite party, as per the terms and conditions of warranty is limited only for repairs and not for refund. It was further argued that the complainant had failed to establish the fact that there was any manufacturing defect for the laptop by getting it examined through an expert. Therefore the complainant who refused to get the laptop repaired has not come to the forum with clean hands and therefore is not entitled for any reliefs as prayed for. We do not find any merit in this contention, for the following reasons. The opposite party, by making an offer of refund of Rs. 45,000/- as per Exbt. A2 itself is an indication of admission that the product sold by them were not a standard product and that it had inherent defect in it. The opposite party had not disputed the fact that the laptop in question was repaired once even prior to the sale. Unless there were inherent defects no such repair would not have been necessary. We can only infer that the opposite parties could not have foreseen the fact that the computer generated data that the laptop was repaired prior to the sale, would come to the notice of the purchaser. The opposite party, having not denied the fact that the previous repairs and also having admitted the fact that the laptop was a refurbished one, the complainant could not have been saddled with the responsibility of proving manufacturing defects through an expert. Therefore the theory of unclean hands raised against the complainant has no support of either fact or law. We, therefore find that the complainant has substantially proved that the opposite parties had sold a refurbished laptop as though it was a new one as per exbt. A1 invoice, with dishonest intention which would amount to unfair trade practice as defined U/s. 2 (1) (r) the relevant portion of which is narrated as follows:
® “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including ay of the following practices, namely:-
i. The practice of making any statement , whether orally or in writing or by visible representation which,-
(i) Falsly represents that the goods are of a particular standard, quality, quantity, grade, compensation, style or model
(ii) Xxxxxxx
(iii) Falsily represents any rebuilt, second –hand renovated, reconditioned or old goods as new goods
(iv) Xxxxxx
(v) Xxxxxx
(vi) Xxxxx
(vii) Gives to the public any warranty or guarantee of performance, efficacy or length of a product or of any goods that is not based on adequate or proper test thereon.
Xxxxxx
Xxxxxx”
8. The definition of unfair trade practice referred to above would contain the unfair trade practice committed by the opposite party/manufacturer, against the complainant as seen from the allegations in the complaint. We therefore find the issues in favour of the complainant.
9. Issue No. iii. Having found issue Nos. i and ii are in favour of the complainant we find that the complainant was subjected to unfair trade practice as well as the deficiency in service at the hands of the 1 and 2nd opposite parties manufacturer and also at the hands of the 4th opposite party service agent for the non-disclosure of the material facts to the complainant. We find that the complainant is entitled to get refund of the cost of the laptop as prayed for as per Exbt. A1 invoice with accrued interest thereon on commercial scale and also to get compensation for the commission of unfair trade practice and deficiency in service committed by the opposite parties 1, 2 and 4. The complainant is also found entitled to get the costs of the proceedings.
10. We therefore make the following direction for compliance by 1, 2 and 4 jointly and severally within a period of 1 month from the date of receipt of a copy of this order, failing which the monetary part of the order would carry interest @ 18 % p.a. from the date of complaint till the date of realization.
i. The opposite parties 1 and 2 are directed to refund Rs. 45,000/- , the purchase value of the laptop with interest thereon @ 12% p.a. from the date of purchase till the date of this order.
ii. The opposite parties 1, 2 and 4 are directed to pay Rs. 25,000/- towards unfair trade practice committed against the complainant.
iii. The opposite parties are directed to pay Rs. 5,000/- towards costs of this proceedings.
Pronounced in the open Forum on this the 18th day of February 2020
Sd/-
Cherian K. Kuriakose, President.
Sd/-
V. Ramachandran, Member.
Sd/-
Sreevidhia T.N., Member
Forwarded by Order
Senior Superintendent
Appendix
Complainant’s Exhibits
Exbt. A1 : Copy of invoice dt. 10-03-2017
A2 : Copy of letter dt.11-09-2017
A3 : Copy of letter dt. 03-05-2017
A4 : Lawyer notice dt. 17-06-2017
A5 : Returned A.D. Card
A6 : Copy of letter dt. 11-09-2017
A7 : Copy of letter dt. 09-10-2017
A8 : Returned A.D. card
Opposite party’s exhibits
Exbt. B1 : Copy of letter dt. 08-05-2018
B2 : Copy of resolution dt. 04-07-2011
B3 : Copy of invoice dt. 10-03-2017
B4 : Original- Buyer’s copy
dt. 18-06-2013
B5 : Original buyers copy
dt. 18-06-2013
B6 : Copy of Vaio Price List Nov. 13
B7 : Copy of domestic service warranty
B8 : Copy of complaint repair card
Date of Despatch ::
By Hand ::
By Post ::
