BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.1346/2010 against C C.No.54/2010 District Forum-II, VISAKHAPATNAM.
Between
M/s.HCL Infosystems Ltd., rep. by
Its authorized signatory, HCL Towers,
1st floor, 44, Dwarakadas Colony,
Chikoti Gardens, Begumpet,
Hyderabad. ..Appellant/
O.P.No.2
And
1. M.Gopichand Naik S/o.M.I.Naik
Hindu aged about 30 years,
R/o.8-45-46, China Waltair,
Visakhapatnam. Respondent/
Complainant
2. M/s Southern Computers,
Dealers in Computer & Peripherals,
Rep. by its authorized signatory,
Shop No.13, Binayak complex,
Opp:G.M.Telecom office,
Dabagardens, Visakhapatnam. ..Respondents/
O.Ps.
Counsel for the Appellant : M/s.T.C.Krishnan
Counsel for the Respondents : M/s.M.Ramgopal Reddy-R1
Notice on R2 held sufficient.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
WEDNESDAY, THE THIRTEENTH DAY OF JUNE,
TWO THOUSAND TWELVE
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the orders in C.C.No.64/2010 on the file of District Forum-II, Visakhapatnam, opposite party No.2 preferred this appeal.
The brief facts as set out in the complaint are that the complainant on 12-2-2007 purchased ‘Toshiba Laptop’ bearing modeL No.M:00-2011E for an amount of Rs.52,000/- from first opposite party with a warranty of one year and the first opposite party has taken an excess amount of Rs.4,500/- from the complainant and gave a warranty extension period till 12-2-2010. The complainant submitted from the date of purchase, the said laptop was not working properly and it has to be repaired frequently. The second opposite party also changed the processor three times and finally changed processor and loaded ‘CELORON PROCESSOR’ (Basic model) and in fact originally the laptop is having Core-2-DUO(intel Centrino Duo) (Advance mode) processor. The complainant came to know of this fact on 15-12-2009 and immediately he met the first opposite party but it did not give proper response. The complainant submitted that he is doing Ph.d (High Voltage Engineering) in Andhra University and working as Assistant Professor in Electrical Engineering Department, College of Engineering, Andhra University and the Laptop was purchased for downloading research papers. The complainant submitted that he had taken internet connection from SIFY net company on monthly rent of Rs.500/- and due to frequent repairs, he had suffered lot of inconvenience.
The complainant further submitted that first opposite party informed him that the service centre is at Hyderabad and if he was having urgency, he has to visit and therefore the complainant went to Hyderabad four times spending lot of money but the laptop was not repaired properly by the opposite parties. The complainant submitted that he came to know recently that the Laptop has manufacturing defect and hence it is not working properly and every time for repairing the Laptop, the opposite parties had taken one or two months time. The complainant got issued a legal notice on 23-12-2009 to the opposite parties demanding them to pay the cost of the Laptop together with interest at 24% p.a. from the date of purchase together with compensation of Rs.1,00,000/- but there was no response. Hence the complaint for a direction to the opposite parties to pay an amount of Rs.52,000/- with interest at 24% p.a. from 12-2-2007 till realization or handover new Toshiba Laptop together with compensation of Rs.1,00,000/- and Rs.25,000/- towards expenses.
First opposite party did not choose to contest and it was set exparte.
Second opposite party filed counter resisting the complaint and that he paid Rs.4,500/- and given warranty extension period till 12-2-2010. It admitted that the complainant purchased a laptop on 12-7-2007 from opposite party No.1 which carries warranty as per the terms and conditions and it was used by the complainant free from all defects for about 3 years and whenever any problem was raised, it was solved. It submitted that the complainant alleged manufacturing defect and it submitted that the manufacturing defect comes into effect from day one and not after 30 months and also that the speed of the processor is different. It further submitted that opposite party No.1 requested him to bring the laptop to service centre in order to assess the problem if any but there was no response from the complainant and in the reply dated 30-1-2010, the complainant was asked to visit the service centre with the laptop but the complainant did not oblige. Opposite party No.2 submitted that the complainant purchased the said Laptop on 12-2-2007 of Toshiba India Ltd., and it is an importer and distributor of Toshiba products and in case of any manufacturing defects, the manufacturer is liable and the manufacturer has to be made a party to the complaint but in this case there was no manufacturing defect as the complainant used the product for 3 years and therefore there is no deficiency in service. It further submitted that as per the terms and conditions of warranty, the defective product has to be returned to the place of purchase within seven days from the date of its purchase and as per limitation clause, if the product is not in good working order as warranted, the sole and exclusive remedy shall be to repair or replacement. Except such remedy, in no event shall Toshiba, or any Toshiba reseller or authorized service provider be liable for any damage of any kind. The Laptop was repaired by the service centre on 06-6-2009 for the first time and on 10-10-2009 for the 2nd time and on 14-11-2009 for the third time and the complainant took return of the laptop only after his satisfaction regarding the service provided and thereafter he never brought the laptop for repair to the service centre. Opposite party No.2 submitted that the complainant is not entitled to a new laptop and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A10 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties 1 and 2 to jointly and severally replace the defective laptop with that of a brand new one of the same model or in the alternative to refund its cost of Rs.52,000/- with interest @ 9% p.a. from the date of its last service report dated 10-11-2009 till the date of realization together with compensation of Rs.5,000/- and costs of Rs.1,000/-.
Aggrieved by the said order, opposite party No.2 preferred this appeal.
Appellant and R1 filed written arguments.
The facts not in dispute are that the complainant purchased Toshiba Laptop for an amount of Rs.52,000/- from opposite party No.1 evidenced under Ex.A1 with a warranty for a period of 3 years, evidenced under Ex.A2. It is the complainant’s case that the appellant herein has taken an excess amount of Rs.4,500/- and he was given an warranty extension till 12-2-2010. Ex.A2, warranty card states that the warranty is from 12-2-2007 for a period of 36 months i.e. till 12-2-2010. It is the case of the complainant that from day one the laptop was not functioning properly and that on 06-6-2009 (Ex.A5), 13-6-2009 (Ex.A6) and 16-11-2009(Ex.A7) the laptop was repaired by the appellant and the processor was changed three times and it was loaded with Celoron processor when the laptop was having core 2-DUO processor. Due to frequent repairs, the complainant suffered as he is a Ph.d. student in Andhra University. It is his case that appellant/O.P.2 did not repair the laptop properly and that the laptop is having manufacturing defects. We observe from the record that the manufacturer has not been made a party. Even otherwise, we observe from the record that the laptop was purchased on 12-2-2007 whereas the first job card, Ex.A5 is dated 6-6-2009 almost 2 ½ years after the date of purchase. Exs.A5 to A7 establishes that the appellant/opposite party has repaired/rectified the problem. We rely on the judgement of the National Commission in II 2004 CPJ 22 (NC) in EICHER MOTORS LIMITED & ANR. v. PN.RANDIVE that when any parts of a vehicle or equipment is replaceable and rectifiable, it cannot be stated to be having an inherent manufacturing defect warranting replacement of the entire equipment/vehicle of refund of the value. From the aforementioned judgement, it is clear firstly that the manufacturing defect has to be established which in the instant case the complainant has failed to establish as to what exactly the manufacturing defect is and secondly if the defects are rectifiable i.e. reparable as evidenced under Exs.A5 to A7, total replacement of the laptop specially after using it almost for 3 years cannot be ordered. It is also pertinent to note that under the Exclusions printed on the warranty card, (Ex.A2) it is stated that the company shall not be liable for any kind of software programs, pre installed software, application software or whatsoever in the product and excluded from the warranty. The job cards Exs.A5 to A7 also clearly state that after the laptop was repaired, the system was working fine. Therefore, we are of the considered view that the complainant has not established the manufacturing defect and has also used the laptop for a period of almost 3 years and the job cards also reflect that the laptop is working properly and therefore no deficiency in service can be attributed to the appellant/opposite party.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. There shall be no order as to costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM 13-6-2012
