DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB          : PRESIDENT

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday the 27^th day of July 2023

C.C.297/2017

Complainant

Muhammed Iqbal.P,

12/915, Parammal, Near Hydrology Office,

Travel Thazham, Malaparamb (PO),

Kozhikode – 673 009.

(By Adv.Sri. Pavithran.K)

Opposite Parties

1.       The Managing Director,

          NEXTECH Computers,

          743/B1, First Floor,

          Snehathara Complex,

          Samooham Road, Tali,

          Calicut – 673 002.

2.       The Manager,

           ACER,

          ASP Address :28/231 D6,

         Thodiyil Building, Opp. Kalyan Silks,

         Pottammal, Calicut – 673 017.

Supl.3.  The Managing Director/ The Manager,

          Acer India (P) Ltd, First Floor, XXXII/2011 A,

          Sivangari – P J Antony Cross Road,

          Palarivattom, Cochin – 682 025.

Supl.4.  The Managing Director,

          Acer India (P) Ltd,

          Embassy Height, 6^th Floor,

          No-13, Magrath Road,

          Bangalore – 560 025.

(The supplemental opposite parties 3 and 4 were impleaded as per order dated 30/11/2017 in IA No. 424/2017)

                                                                         ORDER

By Sri. P.C. PAULACHEN – PRESIDENT 

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

        The complainant purchased an Acer Laptop from the 1^st opposite party paying Rs.30,000/- under Interest Free Scheme provided by Chevayur Service Co-operative Bank.    The laptop was purchased for the use of his son, who is a student.  But the laptop could not be used even for 2 months.  Every time the 2^nd opposite party (Service Centre) was approached, they would receive the laptop and return the same after one or two months stating that the defect was rectified. But the problems persisted.  The laptop was entrusted to the 2^nd opposite party for repairs on more than 7 occasions.   The laptop is now in the possession of the 2^nd opposite party for repairs.  The opposite parties have cheated him suppressing the fact that the laptop was a defective one.  Hence the complaint to direct the opposite parties to provide him a new laptop or else, return the purchase price of Rs.30,000/- along with compensation.

3. The supplemental opposite parties 3 and 4 were impleaded as per order dated 30/11/2017 in IA No. 424/2017.
4. The first and second opposite parties were set ex-parte.  The supplemental 3^rd and 4^th opposite parties filed written version jointly wherein they have denied all the allegations and claims made against them in the complaint.  According to them, there was no negligence or deficiency in service on their part.  The complainant has deliberately concealed the date of purchase of the laptop.  The first complaint was lodged by the complainant on 15/10/2015 and the problem reported was charging issue of the battery.  The battery was replaced and laptop was returned to the complainant in a good working condition.  The 2^nd complaint was on 23/9/2016, after 344 days of the first complaint.  The laptop was not having any inherent manufacturing defects.  The complainant never submitted any test report or expert report to establish that fact.  All the complaints reported were duly attended.  The 3^rd complaint was lodged after 30 days from the date of resolution of the 2^nd complaint.  After 157 days of the date of resolution of the 3^rd complaint, the complainant lodged the 4^th complaint.  Although there was no fault, as a gesture of goodwill, the complaint was accepted and the laptop was made to be in a good working condition.  The laptop was kept under observation for some days and found to be in sound working condition.  The complainant refused to collect it back.  Material facts have been suppressed by the complainant.  It is, therefore, prayed to dismiss the complaint with costs.
5. The points that arise for determination in this complaint are:

1. Whether there is any inherent manufacturing defect in the laptop?
2. Whether there is any deficiency of service on the part of the opposite parties, as alleged?

3) Reliefs and costs.

6. Evidence consists of the oral evidence of PW1 and Exts. A1 to A9 on the side of the complainant. PW1 was not cross examined by the 3^rd and 4^th opposite parties.  There after they filed a petition as IA No.429/2019 to reopen evidence.  The said petition was allowed on terms.  But even thereafter opposite parties 3 and 4 remained absent and did not avail the opportunity to cross examine the complainant or to adduce evidence.

7. Heard the complainant.  The opposite parties 3 and 4 were not available for hearing.
8. Point No.1 and 2: These points can be considered together for the sake of convenience.  The grievance of the complainant is that a defective laptop was sold to him and there was deficiency of service on the part of the opposite parties in carrying out prompt and proper service.  The prayer is for replacement of the defective laptop with a new one or refund of the purchase price.  Compensation is also claimed.
9. The 3^rd and 4^th opposite parties are the manufacturers, the first opposite party is the authorized dealer and the 2^nd opposite party is the authorized service centre of Acer Laptop. The complainant purchased an Acer laptop from the first opposite party on 03/08/2015 paying Rs.30,000/- as per Ext. A1 tax invoice.  The product is having 3 years manufacturer on-site warranty.  The laptop is now in the possession of the 2^nd opposite party.
10. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit in terms of the averments in the complaint and in support of the claim.  Ext A1 is the tax invoice dated 03/08/2015, Exts A2 to A7 are the copies of the service report, Ext A8 is the customer details dated 10/06/2017 and Ext A9 is the copy of the warranty card.
11.  PW1 was not cross examined and his evidence stands unchallenged.  The first and second opposite parties have not turned up to file version.  The third and fourth opposite parties, though filed written version denying and disputing the averments and claims made by the complainant, they also chose to remain absent at the time of evidence.  The opposite parties have not produced any evidence to disprove the averments in the complaint with regard to the deficiency of service on their part or to rebut the veracity of the documents produced and marked on the side of the complainant.  There is no cross examination or contra evidence to disprove the claim of the complainant with regard to deficiency of service.
12. But on a careful consideration and scrutiny of the evidence in hand, it can be seen that there is absolutely nothing to show that the laptop is having any inherent manufacturing defect.  Even the complainant has no specific allegation in this regard.  Apart from a vague averment made in the complaint and repeated in the proof affidavit, the complainant has no specific allegation as to any inherent manufacturing defect in the product.  Apart from this, the complainant has failed to place on record any technical/expert report to show that the laptop is having any manufacturing defect.  Not even a single document has been placed on record to show any manufacturing defect.  Hence the prayer for replacement of the product or return of the purchase price is not allowable.
13. However, there is evidence to show that there was deficiency of service on the part of the opposite parties and that the complainant was put to severe mental agony and hardship due to the frequent failure and his son, who is a student for whom the laptop was purchased, was deprived of the facility of using the same.  Exts A2 to A7 service reports support the case of the complainant.  It is also noticed that there was delay in the service/repairs which is not explained.  As already stated, the laptop is still in the possession of the 2^nd opposite party.  The 2^nd opposite party has no right to retain the same. According to the 3^rd and 4^th opposite parties, the laptop has no defects and is in working condition and it was the complainant who refused to collect it back.  But the said contention is not supported by any evidence.  If the above contention is true and correct, the opposite parties could have issued a notice to the complainant calling upon him to take back the laptop. Moreover, as already stated, the opposite parties 3 and 4 have not cross examined PW1 or adduced any evidence. Gross deficiency of service on the part of the opposite parties stands proved through the testimony of PW1 and Ext A1 to A9 documents.  The complainant deserves to be compensated adequately, even though he is not entitled to get a brand new laptop or refund of the purchase price.  Considering the entire facts and circumstances, we are of the view that a sum of Rs.20,000/- will be reasonable compensation in this case.  The complainant is also entitled to get Rs.3,000/- as cost of the proceedings.  The opposite parties are jointly and severally liable.
14.  Point No:3:  In the light of the finding on the above points, the complaint is disposed of as follows:    

1. C.C. 297/2017 is allowed in part.
2.  The opposite parties are hereby directed to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) as compensation to the complainant.
3. The opposite parties are directed to pay a sum of Rs.3,000/- (Rupees Three thousand only) as cost of the proceedings to the complainant.
4. The payment as aforestated shall be made within 30 days from the date of receipt of copy of this order, failing which, the amount of Rs.20,000/- shall carry an interest of 6% per annum from the date of this order till actual payment.
5. The 2^nd opposite party is directed to return the laptop to the complainant.

Pronounced in open Commission on this the 27^th day of July, 2023.

Date of Filing: 10-06-2017.

                                Sd/-                                                          Sd/-

                   PRESIDENT                                                  MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Tax invoice dated 03/08/2015.

Exts A2 – Copy of service report.

Exts A3 – Copy of service report.

Exts A4 – Copy of service report.

Exts A5 – Copy of service report.

Exts A6 – Copy of service report.

Exts A7 – Copy of service report.

Ext A8 - Customer details dated 10/06/2017.

Ext A9 - Copy of the warranty card.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 -  Muhammed Iqbal.P (Complainant)

Witnesses for the opposite parties 

Nil.

                                Sd/-                                                          Sd/-

                       PRESIDENT                                                  MEMBER

                                                    True Coppy

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