Tamil Nadu

North Chennai

CC/140/2016

R.Rameshkumar - Complainant(s)

Versus

The managing Director Lenovo India pvt .ltd - Opp.Party(s)

A.Ponlingam

13 Mar 2019

ORDER

                                                                        Complaint presented on:  19.08.2016

                                                                            Order pronounced on:  13.03.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

WEDNESDAY  THE 13^th DAY OF MARCH 2019

 

C.C.NO.140/2016

 

 

1.Ramesh @ R.Ramesh Kumar, M/28 yrs,

S/o M.C.Ravikumar,

No.10, Angamuthu Street,

Mettur Dam,

Salem District – 636 402.

                                                                                       …..Complainant

 ..Vs..

1.The Managing Director,

Lenovo India Pvt.Ltd.,

No.4, 5^th  Floor,

Vijaya Towers,

Kodambakkam High Road,

Nungambakkam, Chennai – 34.

 

2.The managing Director,

WS Retail Service Pvt.Ltd.,

Nasihk High Way (NH-3).,

Dive Anjur Village, Thane, Bhiwandi District,

Maharashtra – 421 302.

 

3.The Managing Director,

Hi Tech Informatics Pvt. Ltd.,

No.30/1, 3^rd Floor, Advaidha Ashram Road,

Fairlands, Salem.

 

.....Opposite Parties

Date of complaint                                 : 20.09.2016

Counsel for Complainant                      : M/s.A.Ponlingam, Syed Suhail Althaf

 

Counsel for   1^st Opposite Party               : M/s.Consciential Law Associates, 

                                                                    K.V.Omprakash, S.Yasar Arafath

 

Counsel for 2^nd opposite party                  : M/s.C.Franco  Louis, C.Louis Franco

                                                                    and Awanish Kumar

 

Counsel for 3^rd opposite party                        : Ex – parte (21.10.2016)

         

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant  to direct the 2^nd opposite party to refund the cost of Lenovo Yoga 2 Tablet  with  10% interest per annum  and  also to pay  a sum of Rs.15,00,000/- as compensation  for physical strain and  mental agony suffered with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant had purchased “Lenovo Yoga 2 Tablet Android 8 inch (IMEI/Serial No.59429245)’ from authorized retail center of 2^nd opposite party authorized by 1^st opposite party for a consideration of Rs.18,990/- paid in cash vide invoice No.#MUM-BNDI20150500070247 on 10.05.2015. The complainant  before using the “Lenovo Yoga 2 Tablet Android 8 inch” are suffering the following manufacture defects:-

1. SIM card was not detected by the Lenovo Tab
2. SIM card was unable to remove from the Lenovo Tab SIM port

The complainant went to service office of 3^rd opposite party for service and reported the above said problem on 29.06.2015.  One Engineer Mr.Raja removed the SIM card from Lenovo Tab SIM Port and instructed the complainant to use new SIM card, and complainant acted accordingly. But continually the Lenovo tab has not detected complainant’s new SIM Card and unable to remove from the Lenovo Tab SIM port. Therefore complainant once again went to the service office of 3^rd opposite party for service on 24.07.2015, but the Lenovo tab was returned as “SIM port has been damaged and customer induced damage”. The complainant several time appeared before the 3^rd opposite party for removal of the above said defect, but  did not get any relief, therefore the complainant sent legal notice dated on 27.04.2016 to replace the Lenovo Tab with new Lenovo tab or return complainant price or remove the defects and demanded compensation for  a sum of Rs.15,00,000/- with interest of 10% per annum within 30 days of the receipt of the legal notice towards the complainant physical strain and mental injury suffered due to negligent manufacture of 1^st opposite party and negligent sale of 2^nd opposite party and negligent service of 3^rd opposite party and the same legal notice was received  by the 2^nd& 3^rd opposite parties, but 1^st opposite party cover was returned as left without instruction, therefore complainant once again sent legal notice to 1^st opposite party on 01.06.2016, which was received by the 1^st opposite party. The complainant had received legal interim reply dated on 02.05.2016 from Lenovo India Pvt. Ltd., Complainant also sent reply along with demanded documents to Lenovo India Pvt. Ltd on 23.05.2016.  Till date the opposite parties not take any action to remove the defect or replace the Lenovo tab with new Lenovo tab or return the price after received the legal notice. Therefore there is no other way for complainant to file this complaint before this Honorable forum for getting relief. Hence the  complaint.

2. WRITTEN VERSION OF THE  1^st OPPOSITE PARTY IN BRIEF:

          The complaint filed by the complainant is devoid of  merits. On validating with the authorized service center that, there was first and last call logged with the authorized service center dated July 1^st 2015 vide Ref No.7022358528  for sim slot issue. On examination, it was found that there was a damage in SIM slot which is considered as “Customer Inuced Damaged” (CID)  and therefore the repair can be carried out on chargeable basis and same was informed to the complainant. As per “Lenovo Limited Warranty”/ this warranty does not cover the following:-

          -uninterrupted or error free operation of a product.

          - loss of, or damage your data by a product

          - any software programs, whether provided with the product or installed subsequently.

          - failure or damage resulting from misuse, abuse, accident, modification, unsuitable physical or operating environment, natural disasters, power surges, improper maintenance, or use not in accordance with the product information materials

          -damage caused by non-authorized service provider

          -failure of, or damage caused by, any third party products including those that Lenovo may provide or integrate into the Lenovo Product at your request

          -any technical or other support such as assistance with ‘how to’ questions and those regarding  product set up and installation

          - products or parts with an altered identification label or from which the identification label has been removed.

          That in the instant complaint since it was found that there was a SIM Slot  damage in the handset of the complainant and the same was due to a ‘CID’ issue i.e customer induced damage”. That the complainant was informed by the authorized service center that such physical damage was not covered under warranty. The authorized service provider of the  opposite party had also  informed the complainant that the service would be provided on paid/chargeable basis. Hence there is no deficiency in service by the opposite party.The allegations made by the complainant regarding the second visit is denied. The opposite party states that they have received the legal notice sent by the complainant and the counsels for the opposite party had replied asking for producing the correct serial number as it was an incorrect serial number mentioned in the legal notice and informed that on receipt of the same the  concerned department shall access the history and try to resolve the issue. On diagnosing the machine it was found that it’s the damage caused by the complainant and repair can be carried out on chargeable basis as per the Lenovo warranty clause. The Tablet which had issues was due to customer induced damage and thus repair can be carried out on chargeable basis as per the terms and conditions of the warranty. Therefore, there is no deficiency in service and complainant is not entitled to any reliefs from this Hon’ble Forum.

3. WRITTEN VERSION OF THE  2^nd OPPOSITE PARTY IN BRIEF:

          The 2^ndopposite party is not engaged in sale of any goods manufactured or produced by its own. The 2^ndopposite party is engaged in sale of goods manufactured and produced by other manufacturers. The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine as it does not show any cause of action against the 2^ndopposite party. The products sold by the 2^ndopposite party carries manufacturer’s warranty. As a reseller, involvement of 2^ndopposite party in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint, the manufacturer is 1^stopposite party.  There has neither been any shortage of supply nor any deficiency in service on the part of the 2^ndopposite party. Liability to provide after sale services does not lie upon the 2^ndopposite party as the 2^ndopposite party is not the manufacturer or the service centre engaged by the manufacturer, which in present case is the opposite parties 1 & 3 respectively and hence, no cause of action lies against the 2^ndopposite party in the present complaint. That there  has been no dispute contemplated under the Consumer Protection Act between the complainant and the 2^ndopposite party as the 2^ndopposite party is not the manufacturer of the product sold to the complainant and has no facility or knowledge to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects. Therefore the 2^ndopposite party is not liable to pay any compensation. The 2^nd opposite party is an online reseller registered on ‘Flipkart.com’. The 2^nd opposite party is not the manufacturer but an online reseller and the products sold by 2^nd opposite party carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only. Any grievance which the complainant has is only against the manufacturer and its authorized service centre for not providing after sale service and the 2^nd opposite party has no role to play in offering or providing after sale services to the customers. Hence,  the  present complaint should have been against the manufacturer and the authorized service centre appointed by the manufacturer and the complainant has been wrong in arraying the 2^nd opposite party in the present complaint and hence the present complaint should be dismissed against the 2^nd opposite party.

4. The complainant and the opposite parties 1 & 2 had come forward with their respective proof affidavit and documents. Ex.A.1 to Ex.A8 were marked on the side of the complainant  and the  1^st opposite party proof affidavit and documents Ex.B1  to Ex.B4  were marked on the side 1^st opposite party. But no document was produced by the  2^nd opposite party.         

5. The  3^rd opposite party who was served with the notice from this forum was called absent and  he was set ex-parte on 21.10.2016.

          6. The written arguments of the complainant and the  1^st& 2^nd opposite parties  were filed and the oral arguments of the both were heard.    

7. 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 extent?

8. POINT NO :1 

The complainant purchased “Lenovo Yoga 2 Tablet Android 8 inch (IMEI/Serial No.59429245)’from 2^nd opposite party on 10.05.2015 vide Ex.A1 receipt through Flipkcart. According to the complainant, the supplied tablet suffered from manufacturing defect such as SIM card was not deducted and it was unable to remove from SIM port. The complainant approached the 3^rd opposite party for service. The customer carry in service report in Ex.A2 dated 29.06.2015 reveals the problem reported as ‘SIM was not deducted’ and the customer had signed in the report which bears the customer remarks as “If SIM slot damage, he will accept’. Again on 24.07.2015, the complainant approached the 3^rd opposite party and the problem reported was “SIM Card unable to remove” and on examination in the service center, it was found that the module of the SIM card has gone in, there by damaging the panel while inserting and removing SIM and it is incorporated as Customer induced damage in Ex.A2, the service report. The stuck SIM was removed in the service centre.  Ex.A4 & Ex.A6 are  notices given by the counsel for the complainant to opposite parties and was received by them. Interim reply by the 1^st  opposite party  through his counsel was given vide Ex.A7 dated 05.05.2016, wherein the particulars are sought for in order to enable them to  forward to the concerned department and confirming the earlier particulars the reply was sent by the complainant in Ex.A8.

             09. Lenovo limited warranty is marked as Ex.B2. Interim reply already marked by the complainant is again marked as Ex.B3 by 1^st opposite party and Ex.B4 is the reply given on behalf of the complainant to the counsel for opposite party. The complainant would contend that there are two defects found in the tablet. SIM was not deducted and SIM was unable to remove from the tab SIM Port. When the complainant approached the 3^rd opposite party for service and it was not repaired properly during the warranty period and hence he is responsible for deficiency in service and due to negligent manufacture of the 1^st opposite party  and also negligent sale of 2^nd opposite party both 1^st & 2^nd opposite parties  are responsible along with the 3^rd opposite party  for mental agony and physical strain  of the complainant.

 10. On examination of the tablet, it was found in the service centre i. e. 3^rd opposite party that there was damage to the SIM slot which is considered as “Customer induced damage”. It is also exhibited in Ex.A3 and the customer / complainant had admitted in the column of remarks as he will accept if slim slot damage is found. But the complainant alleges that 3^rd opposite party had wantonly written as above in the remarks column.  Having signed at the time of getting the report and agreed for the same the complainant cannot revert back and now say that it is wantonly written by the 3^rd opposite party. Hence the contention regarding the same by the complainant cannot be accepted. The documents submitted by the complainant are the service particulars of the service center of 3^rd opposite party. As submitted by the 1^st opposite party the warranty does not cover for the Customer Induced Damage as per the terms and conditions of the limited warranty clause which reads as:

 “Failure or damage resulting from misuse, abuse, accident, modification, unsuitable physical or operating environment, natural disasters, power surges, improper maintenance, or use not in accordance with the product information materials”

 It is clear from the above referred clause  the damage resulting from misuse, abuse and force-majeure circumstances  are not covered under warranty terms and conditions and there was a physical damage in the handset of the complainant as per the records after examination in the service centre. Since there is no coverage in the warranty, the complainant was informed that the services would be provided on payment is considered as a correct statement.  The allegation against the 1^st opposite party is that being the manufacturer, negligently manufactured the defective handset and the 2^nd opposite party  being the seller has sold the tablet the defective one, but the complainant has neither filed any proof or any opinion from a technician so as to say that the tablet is a defective one and it has the manufacturing defect, nor controvert the result after the examination of the Tablet by the service center and produced any document.

11. The 2^nd opposite party is neither a manufacturer nor authorized service centre. He is a seller, and also an online reseller. 2^nd opposite party has nothing to do with the alleged defect. Moreover the complainant has not proved that it is only the manufacturing defect, 1^st & 2^nd opposite parties are not at all liable for the alleged contention of the complainant. In view of the customer induced damage, the complainant cannot question the service center also and in view of the customer induced defect noticed on examination and unless it is disproved by the complainant, the warranty coverage is not available to the complainant hence 3^rd opposite party’s denial for free service as per the contention of the complainant does not amount to deficiency in service. Therefore point No.1 is answered accordingly.

12. POINT NO:2

          In view of the findings in point no.1 as there is no deficiency of service and unfair trade practice by the opposite parties, there is no  physical strain or  mental agony to the complainant  and the complaint is liable to be dismissed.

          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 13^thday of March 2019.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 10.02.2015                   Invoice

Ex.A2 dated 29.06.2015                   Customer carry in service report

Ex.A3 dated 24.07.2015                   Customer carry in service report

Ex.A4 dated 27.04.2016                   Legal notice to and receipt with AD

Ex.A5 dated 29.04.2016                   Return Postal Cover of Legal Notice

Ex.A6 dated 01.06.2016                   Legal notice to 1^st respondent with AD

Ex.A7 dated 02.05.2016                   Legal Interim reply

Ex.A8 dated 23.05.2016                   Reply to Legal Interim reply

 

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY:

 

Ex.B1 dated NIL                     Board Resolution

Ex.B2 dated NIL                     Limited Warranty Clause

Ex.B3 dated NIL                     Interim reply letter

Ex.B4 dated NIL                     Reply letter sent to the opposite party                

LIST OF DOCUMENTS FILED BY THE 2^nd OPPOSITE PARTY:

 

                                      …….. NIL ……

 

 

                                               

MEMBER – I                                                               PRESIDENT