DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of April, 2023.
Filed on: 21/08/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C. C. No. 231/2020
Between
COMPLAINANT
Sreeju M.S, S/o AS. Sukumara Marar, Madathil House, Ramamangalam, Ernakulam District, Kerala, 686 663.
(Rep. by Adv. S. Russel, 2nd Floor, Tristen Tower, Market Road, N. Kombara, Cochin 682018)
VS
OPPOSITE PARTIES
1. Acer India (Pvt) Ltd., Head Office, 6th Floor, No.13, Embassy Heights Magrath Road, Bangalore-560025, represented by its Manager.
(Rep. by Adv. Suraj John, Muvattupuzha, Ernakulam)
2. The Manager, Acer India Pvt Ltd., Regional Office, XXXII/2611 A-1, 1st Floor, Sivangari, P.J Antony Cross Road, (Opp: Muthoot Honda), Palarivattom, Cochin 682 025.
3. The Manager, M/s High Range Home Appliances, KGEES Building, Opposite Chazhikattu Hospital, Thodupuzha, 685584.
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant had purchased the laptop from the 3 opposite parties who stated that the product is a new one and has a warranty for a period of one year from the 1 st and 2 nd opposite parties. Believing the words of the 1st opposite party the complainant purchased the laptop for a sale consideration of the said product was Rs. 20,500/-. The same was purchased vide Invoice No. THO/0101 dated 06.05.2020 issued by the 3rd opposite party. The 3rd opposite party had assured the complainant that the product delivered is a brand-new product free from any defects. It was made believed that the product is having a warranty of one year from the first opposite party. It was also informed that in case of any complaints if the product is taken to the 3rd opposite party, the same will be rectified by the 3rd opposite party with assistance from the 1st and 2nd opposite parties. The product showed certain hardware complaints and was taken back to the 3rd opposite party on 15.05.2020. The 3rd opposite party collected the product and sent it to the 2nd opposite party for getting the defects solved. The product was returned back to the complainant on 30.05.2020 ensuring that all the complaints are rectified. The Laptop again showed certain defects on the very next day and was taken to the 3rd opposite party. The complainant demanded the replacement of the said Laptop as it was showing defects continuously. The 3rd opposite party was neither amenable to necessary service. The complainant had to return home with the laptop in defective condition. The attitude shown by the 3rd opposite party is lethargic and quite unbecoming on the part of a dealer. The 1st and 2nd opposite parties are vicariously liable for the acts of the 3rd opposite party. The attitude on the part of 3rd opposite party has caused agony to the complainant. It is come to understand that, the laptop manufactured by the 1st opposite party and delivered to the complainant by the 3rd opposite party was a defective good. There is also a deficiency of service on the part of the opposite parties. The same has caused damage loss and injury to the complainant. On 06.05.2020 on which date the complainant purchased the laptop from the third opposite party and also on 15.05.2020 and 01.06.2020 on which dates the complainant approached the third opposite party for the service of the laptop. The complainant had approached the Commission seeking an order directing the opposite parties to take back the defective laptop and pay the complainant an amount of Rs. 20,500/- (Rupees Twenty Thousand and Five Hundred only) with interest, to pay Rs. 50,000/- (Rupees Fifty Thousand only) as compensation on account of the loss and suffering of the complainant and also on account of the agony suffered and the cost of the litigation.
2. Notice
Notice was issued from the Commission to the opposite parties. The second opposite party was deleted from the party array on the memo filed by the complainant. The first and third opposite parties received the notice but did not file their versions within the statutory period. Consequently, the first and third opposite parties are set ex-parte.
3) . Evidence
The complainant had produced proof affidavit and 3 documents that were marked as Exhibits-A-1- to A-3.
Exhibit A-1. The copy of Invoice No. THO/0101 -dated 06.05.2020 issued by the 3rd opposite party to the complainant.
1. Exhibit A-2. The copy of the notice issued to the Opposite parties Dated 03.06.2020.
2. Exhibit A-3. The Copy of the Postal receipts dated 05.06.2020.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 35 of the Consumer Protection Act, 2019. As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the invoice issued by the 3rd opposite party (Exhibit A-1). This document revealed that the complainant had paid the requisite consideration for the product to the opposite parties. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 2019. (Point No. i).
The complaint is regarding the recurring defect of the laptop supplied by the opposite parties. The complainant alleged that the reluctance on the part of the opposite parties to rectify the defect of the laptop within the warranty period amounts to a deficiency in service and unfair trade practices.
The learned counsel for the complainant submitted that the 3rd opposite party had assured the complainant that the product delivered is a brand-new product free from any defects. It was made believed that the product is having a warranty of one year from the first opposite party. It was also informed that in case of any complaints if the product is taken to the 3rd opposite party, the same will be rectified by the 3rd opposite party with assistance from the 1st and 2nd opposite parties.
The action/inaction on the part of the opposite parties is a clear deficiency of service and it also amounts to unfair trade practice. The opposite parties are well aware that the laptop sold to the complainant is having a manufacturing defect. The complainant is liable to be compensated for the deficiency of service as well as for supplying the defective product.
The complainant had caused to issue a notice dated 03.06.2020 on 05.06.2020 to the opposite parties stating his grievance (Exhibit A-2). The notice issued to the 2nd opposite party was returned stating the reason the addressee left. This is the known address of the 2nd opposite party as provided on the website of the 1st opposite party. The Postal receipts dated 05.06.2020(Exhibit A-3).
It would be quite appropriate to quote here the relevant part of the lawyer notice dated 15.10.20 sent by the complainant to the 3rd opposite party.
“3. The product showed certain hardware complaints and was taken back to the 3rd among you on 15.05.2020. The 3rd among you collected the product and sent it to the 2nd among you for getting the defects solved.
4. The product was returned back to my client on 30.05.2020 ensuring tall the complaints are rectified. However, the Laptop again showed certain defects on the very next day and was taken to the 3 among you. My client demanded the replacement of the said Laptop as it was showing defects continuously.
5. At this time, the 3rd among you was neither amenable to the demand made by my client nor to take the product for necessary service. My client had to return the laptop in defective condition.
6. The attitude shown by the 3rd among you is lethargic and quite unbecoming on the part of a dealer. The 1 and 2 among you are vicariously liable for the acts of the 3rd among you “.
The complainant who had purchased the product of the opposite parties was made to suffer due to the deficiency of service on part of the opposite parties. The opposite parties are liable to compensate the complainant for the deficiency of service on their part. The coordination between the manufacturer and the service provider is also not being carried out in an effective manner.
Nachiket P. Shirgaonkar v/s Pandit Automotive Ltd. & Another, Revision Petition No. 3519 of 2006 in Appeal No. 1953 of 2005, Decided On, 25 February 2008, The Honorable National Consumer Disputes RedressalCommission.AIR,2008,(NOC)2260(NCC)
“In this case, from day one onwards the vehicle was found to be defective which was admitted by the dealer himself through his letters. Naturally, encountered with these problems the consumer must have been shell shocked compelling him to knock at the doors of the Consumer Forum. Even before the Consumer Forum in the written submissions filed by OP 1, there is a clear admission of the manufacturing defects. Hence, we are convinced that the vehicle did suffer from manufacturing defects. This is a clear case of res ipsa loquitur i.e. facts speak themselves hence there is no need to refer the vehicle to a third party for giving an opinion.”
In the present case, after a short duration of the purchase of the laptop, the problem occurred in it. Though it was rectified yet again the same problem crept up. When the same problem crept up again and again, we are of the view that the laptop, had some manufacturing defect not capable of being removed and the same was not worthy of use. The persistent problems in the laptop, ever since its purchase. Yet, despite repeated repairs, the problems were not resolved. Hence, the recurring defect is evident.
The Hon’ble National Consumer Disputes Redressal Commission in Nuzhat vs Dee Dee Motors Pvt. Ltd. & Anr, on 3 December 2019, the Commission defined a manufacturing defect as a “defect which persistently comes up and cannot be rectified even after attempts made by the dealer.”
The opposite parties collected Rs. 20,500/- towards the price of the laptop as evidenced by Exhibit A-1. The complaint has issued Exhibit A2 lawyer notice to the opposite parties. But in vain.
We have also noticed that Notices were issued from the Commission to the opposite parties but did not file their versions. Hence the opposite parties set ex-parte. The complainant had produced 3 documents which are marked as Exbt.A-1 to A-3. All in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary, and unjustified act of the Opposite Parties amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The Opposite Parties had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of Opposite Parties in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (I), (II), (III), and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall refund Rs. 20,500/- (Rupees Twenty Thousand and Five Hundred only) towards the purchase price of the Laptop to the Complainant as per Exhibit A-1-invoice.
ii. The Opposite Parties shall pay Rs.15,000/- (Rupees fifteen thousand only) as compensation for the mental hurt, loss, agony, and hardship caused to the complainant.
iii. The Opposite Parties shall also pay the complainant Rs.7000/- (Rupees seven thousand only) towards the cost of the proceedings.
The opposite parties shall be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order, failing which the amount ordered vide (i) and (ii) above shall attract interest @9% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 28th day of April, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
1. Exhibit A-2. The copy of the notice issued to the Opposite parties Dated 03.06.2020.
2. Exhibit A-3. The Copy of the Postal receipts dated 05.06.2020.
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 231/2020
Order Date: 28/04/2023
