SMT. S. S. ALI, MEMBER
The complainant, Sudip Bag is a student of 19 years. He purchased a HP Pavilion 431 Lap Top S.N. 5CB2242BST from the OP on 22-07-2013. The description of the computer is given herein below.
HP PAVILION 431 LAPTOP, SN 5CB2242BST, P.NO. B9A35PAHACJ, One year warranty with HP laptop carry bag, Zebronics USB Mouse 1 year warranty, Beetel 3G-BG-64 USB Modem 1 year warranty, Enter Mini USB Keyboard 1 year warranty, SN 1211036545.
Sometimes in the month of February 2014 the complainant found some problem in the laptop, i.e. there was dim display on the led screen and performance of hard drive was very slow. The complainant informed about the said matter to the OP. According to the direction of OP the complainant informed the matter to HP Customer Care Centre on 17-02-2014. The customer care centre of HP informed that the warranty period of the said laptop has been expired 2 months ago. They also informed the complainant that the said laptop had already been sold to one Tathagata Ghosh before sale of the same to the complainant and that there was self-instruction in the said laptop that it-s warranty started on 15-08-2012. Complainant requested the OP to change the Laptop, but he did not do so. Father of the complainant lodged a complainant with Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur on 27-03-2014 against the OP, but the OP did not care for it to attend the said office. As OP has done unfair trade practice by selling second hand laptop to the complainant, he has been suffering from mental agony, hence this case for relief as sought for in the complaint.
The OP entered appearance and filed his written version. The story of the OP is that he is a businessman. Having a shop under the name -New Computer World- , he is involved in selling, servicing and maintenance of all kinds of software and hardware; OP purchases laptop and computer and sales those to different customers. The OP purchased 1) CQ/HP laptop 431(B9A35PA) S/N 5CB2242BST, 2) CQ/HP Bag Pack from Alco Infotech Pvt. Ltd. at 5 Princep Street, Kolkata – 7 on 03-07-2013. OPsold the said laptop to the complainant on his choice on 22-07-2013 and at the time of selling the laptop, the OP fully checked the laptop in presence of the complainant. The OP gave sale receipt to the complainant. Complainant informed the OP regarding the problem of LED screen of the said laptop and regarding the lapse period of warranty which the complainant came to know from HP Pavilion Service Centre. For the benefit of the complainant and for the interest of the complainant the OP on 01-03-2014 did call log vide case ID 4721849885 at HP Customer Care and as per instruction of HP, the OP on 04-03-2014, for the purpose of warranty issue, sent purchase bill of ALCO Infotech Pvt. Ltd. for the said laptop and sale bill of the OP by mail ID -processianat the rate ofhp.com- to the HP Customer Care. On 05-03-2014, HP Care replied by mail to the OP that they have received the invoice and concerned team is working on the same with an assurance to get back to the OP. Thereafter on 09-03-2014, the OP again asked the HP Customer Care to look into the matter, but they did not take any step. Thereafter, the OP requested the HP Customer Care to send information regarding registered copy of Tathagata Ghosh, but the HP Customer Care refused to oblige the OP. It is also submitted by the OP that HP Pavilion Service Centre of 10A, Wood Street, Kolkata – 16 and HP Customer Care is same and that the said laptop was the product of HP Pavilion Service Centre and ALCO Infotech Pvt. Ltd. is the distributor of HP Pavilion Service Centre from where the OP purchased the said laptop. OP also submits that they never did unfair practice by selling said laptop to the complainant and therefore, the complainant has no reason to suffer mental agony due to the OP. It is submitted by the OP that all liabilities regarding the said laptop lies with HP Pavilion Service Centre and he stated in paragraph 4 of the written version that the case is not maintainable as it is bad for defect of parties.
In support of the case, the complainant filed Photocopy of Invoice no. NCW/SAL/489/13-14 dt. 22-07-2013, copy of complaint lodged with Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur dt. 27-03-2014, order passed by Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur dt. 08-05-2014 etc.
In their defense, OP filed photocopies of complainant lodged by the complainant with Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur dt. 27-03-2014, letter dt. 28-03-2014 issued by Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur to OP and others, copy of Sale their bill/invoice dt. 22-07-2013, copy of invoice dt. 03-07-2013 issued by Alco Infotech Pvt. Ltd., email correspondence exchanged between the OP and HP Customer Care.
Now the points that need to be discussed.
- Whether the OP is guilty of unfair trade practice or not?
- Whether the complainant is entitled to any relief as prayed for?
Decisions with reasons
Point nos. 1 & 2:
On going through the record we find that the laptop in question i.e. HP PAVILION 431 LAPTOP, SN 5CB2242BST, P.NO. B9A35PA#ACJ with One year warranty was sold by OP to the complainant vide their Invoice No. NCW/SAL/489/13-14 dt. 22-07-2013. As per the petition of complaint the complainant faced some problems with the said laptop and so he brought the matter to the notice of OP within the warranty period. On 27-03-2014 complainant filed an application before the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur making the OP, a party in his complaint from which, we come to know that prior to the filing of this case and filing of written version by the OP on 04-07-2014, the OP had knowledge about the defective condition of the laptop.
During warranty period if any defect occurs, the first and foremost duty of the seller is to do everything to remove the defect from the commodity sold to the buyer. In this case when the OP came to know about the defect of the laptop, instead of taking any initiative himself to remove that defect, he put all the responsibility on the Customer Care of HP.
It is contended by the ld. Advocate of the OP that Alco Infotech has not provided any warranty card in respect of the said product sold to the OP. That being so, it can be said that OP, when he purchased the laptop from the Alco Infotech Pvt. Ltd. on 03-07-2013 he had knowledge that the laptop was not a firsthand one for which he was not given any warranty card by Alco Infotech.
The OP, in his Written Notes of Argument, stated that -as per the version of the complainant, the complainant first informed the matter to the OP…… all he could and had to do in order to assist the complainant for which he informed the matter to the manufacturer or his agents i.e. the service centre.- Then he states that -it is to be mentioned here that on these basis of complaint lodged by the complainant at the instance of your OP to the H.P. Service Centre, a reference being “HP Support call case no. 4721849885” dt. 17.2.14 was given to him for a reference no. for one time communication-. So the OP admits that he advised the complainant to inform HP Service Centre regarding the problem faced by the complainant with the laptop.
By letter dt. 28-03-2014 we come to know that a letter was sent by the Consumer Affairs & Fair Business Practices to the Proprietor, New Computer World, Mechada i.e. OP. But the OP did not take any initiative to appear before the Consumer Affairs & Fair Business Practices and clarified his point regarding his incapability of not being able to replace or remove the defect of the laptop. From the complainant marked Anx. 1 produced by the complainant before the Consumer Affairs & Fair Business Practices dt. 27-03-2014 sent to the OP we come to know that the father of the complainant came to know by calling the Toll free no. of HP Pavilion that the validity period of warranty of the laptop purchased by his son lapsed two months prior to his purchase and it was registered in the name of one Tathagata Ghosh of Malda having same sl. no. who had made the HP undergo a service or servicing from the HP Service Centre at Malda. It goes to show that if the complainant had not called up the HP Service Centre, he would not have come to know that a defective laptop had been sold to him by the OP with the new cover and with all accessories making it show that it was a first hand purchase made by the complainant. We feel that when the OP came to know about the defects of the laptop, he should have taken all initiatives to replace the defective laptop and provide the complainant with a new one when the warranty period covering the product was still in vogue.
On perusal of the documents and papers on record filed by the parties and also keeping in mind the argument placed before this forum by the ld. Advocates it can be said that when a person buy a commodity from any retailor shop, if any defect occurs with the commodity or product, the first and foremost duty of the retailor, who sell the same, is to remove the defect. But in this case father of the complainant calling the Customer Care Centre of HP Pavilion came to know about the details of the defect of the laptop being purchased by his son. When the said defects were informed to the retailor/OP, he tried to shrug off his responsibility by putting all the blame to HP Customer Care Centre which is totally baseless because the Customer Care Centre is not the source to replace the product, but to correct the defect that occurs in the product if any defect occurs within the warranty period. In this complaint case the complainant came to know from HP Pavilion centre that not only a second hand defective product had been sold to him by the OP, but the same is also registered in the name of another person. Therefore, we feel that the OP had suppressed the material fact about the laptop while selling the same to the complainant insofar as he did not provide any warranty card to the complainant, which comes with every new commodity. As such, we feel that the OP has done unfair trade practice and there is no hard and first rule to get hold of the manufacturer or Alco Infotech Pvt. Ltd. because these two companies are not directly related with the grievance of the complainant. In such a case, complainant is entitled to get replacement of the defective laptop with a new one of similar specification from the OP, otherwise reimbursement of the cost of the laptop i.e. Rs. 34,416.90 together with compensation to the tune of Rs. 3,000/- for mental agony of the complainant caused by him (OP) and litigation cost of Rs. 1,500/- to be given by the OP to the complainant.
Both these points are, thus, disposed of in favour of the complainant.
Hence, it is
ORDERED
That the instant complaint case be and the same is allowed on contest against the OP. OP is directed to replace the defective laptop in question with a defect free new laptop of similar specification or refund the cost of the laptop i.e. Rs. 34,416.90 along with compensation for a sum of Rs. 3,000/- and litigation cost of Rs. 1,500/- within 40 days from the date of this order i.d. complainant is at liberty to execute this order in accordance with law in which case, OP shall be liable to pay fine at the rate of Rs. 150/- per diem from today till compliance of this order in toto.
