Order-16.
Date-06/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
In short, the case of the complainant is that complainant placed an order for one Lenovo S8 Tablet through internet to O.P.-4. O.P.-5 supplied the Lenovo Tablet on 12/12/2014 and complainant paid Rs.16,990/-. O.P.-1 occasionally releases ‘Over the Air’ updates. After one month of receiving the Tablet the complainant downloaded OTA update. On downloading the Update, the quality of image was extremely inferior and visual quality of the original image was deteriorating. Complainant was advised by O.P.-1 to deposit the Tablet to O.P.-3, the Authorized Service Centre of the manufacturer, O.P.-1. Accordingly complainant deposited the tablet with O.P.-3 on 26/02/2015 and received back the Tablet on 09/03/2015. O.P.-3 could not improve the quality of visual image. Complainant was informed by O.P.-1 that only the pixel has been changed. The update was officially released by Lenovo. On 13/03/2015 complainant informed O.P.-1 about the deterioration of picture quality and requested them to refund but they refused. One Deepak Prakash of Tablet Technical team requested that the Tablet be given to the O.P.-3 (Service Centre) to reload the original image back in the Tablet. In his e-mail dated 08/04/2015said Mr. Prakash requested the complainant not to use the OTA Updates and the O.P.-1 trhought that the problem has been solved. OTA Updates has been released by Lenovo with respect to pixel. The size of the text is too small to be read in original. O.P.-1 increased the size of the font. The image / icon and the font are in one phone. Now the result / icon resulted in unacceptable image / icon. There is no correlation between the change of the size of the font and displayed image / icon. Comparing the updated image with the original image, the difference was clear. O.P.-1 requested the complainant not to go for OTA Updates. O.P.-1 has supplied a defective Tablet. So complainant prays for refund of entire price of the Tablet by taking back the defective Tablet. She also prays for compensation for her harassment to the tune of Rs.30,000/- together with litigation cost of Rs.10,000/-.
O.Ps.-1 and 2 contested the case by filing W.V. contending inter alia that there is no defect in the Lenovo S8 Tablet and there is no deficiency in service on their part. From 14/04/2014 till now the Tablet is working fine. O.Ps.-1 and 2 are not the manufacturer, they are the importers only. There was a minor issue in the Tablet due to a pixel change and that there was no fault in the image resolution of the device. If the Authorized Service Centre is unable to repair the parts of the respective machine, refund will be provided as per the Lenovo Warranty Clause. On 08/04/2015 O.Ps.-1 and 2 requested the complainant to visit the Authorized Service Centre so that the device problem may be diagnosed once again. After resolving the minor DPI issue the Tablet was returned to the complainant. OTA Updates are meant for corresponding software/hardware. They informed that due to OTA update there was no change in the image resolution. The pixel issue was resolved by the Service Centre to a better version, than the original one. This complaint is made for malicious allegations. Hence be dismissed.
O.P.-3, Computer Gallery Services has also contested this case by filing W.V. contending inter alia that the complaint petition is misleading. Complainant failed to establish that complainant has sustained heavy loss or damage due such alleged deficiency in service. Complainant has not established in any manner its contractual relationship with O.P.-3. Hence complainant is not entitled to get any relief. Lenovo has released OTA Updates for their manufactured Tablets. O.P.-3 has updated image to complainant’s Tablet. As a result, the size of the font changed but there was no change in the size of icon. O.P.-3 has formatted the Tablet as per instruction of Lenovo and provided images and software. O.P.-3 has worked as per specific instruction of O.P.-1 Lenovo. There is no such fault of service centre in this issue. Complainant is not entitled to get any compensation, because she failed to produce any document in support of her statement. So the complaint is liable to be dismissed with exemplary cost.
O.P.-4 Flipkart India Pvt. Ltd. also contested the case by filing its W.V. denying all the allegations levelled against them by the complainant. It is stated in the W.V. that Flipkart India Pvt. Ltd. is a registered company engaged in wholesale cash and carry business. It is stated that the complaint is baseless and frivolous and there is no privity of contract between the complainant and O.P.-4 So the complaint is not maintainable. O.P.-4 is a whole seller and engaged in buyer to buyer sales. O.P.-4 is the receiver of the order of Tablet in question. O.P.-4 is not involved in Online Trading. Complainant has failed to establish any cause of action against O.P.-4. So the present complaint is not tenable and liable to be dismissed.
O.P.-5 M/s retail Services Ltd. has also filed their W.V. denying and disputing all the material allegations against them. O.P.-5 is a registered retailer on the Website Flipkart.com and sell the product of the manufacturer, traders etc. under their respective trademarks through Website. O.P.-5 has a separate identity than manufacturer. O.P.-5 is engaged in selling of goods manufactured and produced by manufacturer. O.P.-5 sells the item carrying the manufacturer’s warranty. After using the Tablet for four months and thereafter the complainant made an allegation that the Tablet is defective. O.P.-5 provides replacement warranty for thirty days to its customers. The defect arose due to complainant’s own fault, misuse and mishandling. O.P.-5 is merely a reseller registered under Flipkart.com. O.P.-5 has not sold any product to the complainant. The office of O.P.-5 is at Bangalore which is outside the jurisdiction of this Ld. Forum. Hence the present complaint be dismissed with exemplary cost.
Decision with Reasons
On careful examination of the complaint petition, annexures, written versions filed by the O.Ps.-1 to 5 and other documents on record, we find that admittedly and evidently, complainant purchased one Lenovo S8 Tablet for Rs.16,990/-. The Tablet in question was ordered through Flipkart.com and M/s Retail Services Pvt. Ltd. supplied the Tablet to the complainant on 12/12/2014. Lenovo releases Over The Air Update. While downloading the said OTA Update, complainant observed that the quality of image was deteriorating Complainant contacted O.P.-3 and her call was logged on 26/12/2015. Problem was detected as DPI issue. The Service Centre (O.P.-3) checked and suspected OTA Update issue and latest image update was done and waited for latest OTA Update. Action was taken on 09/03/2015. Complainant again wrote to Customer Care on 13/03/2015 and 20/03/2015 and wanted refund of the price of the subject Tablet, because the problem was related to pixel issue. So updating through further OTA Update would not improve the quality of the picture. On 14/03/2015 and 23/03/2015 the Customer Care Section of Lenovo informed that the case is not matching with the DOA Guidelines. So replacement is not possible. Again, on 02/11/2015 complainant was informed that her problem cannot be entertained. If it was received a month ago, then her offer would have been looked into. It appears from the above communications that complainant’s problem was not solved. If it is not solved the purpose of purchase the subject Tablet is frustrated.
‘Over The Air’ update is the wireless delivery of new software or data to mobile phones and Tablets. OTA is standard for the transmission and reception of application, related information in a wireless communication system. OTA technology is basically used to distribute software updates, configuration setting etc. directly to portable devices like Smartphones and Tablets. People get directly other update Over The Air from wireless carriers and not via USB and other connectivity methods. Some manufacturers including Lenovo releases OTA Updates to be updated manually. But it is very strange for the purchaser of Tablet being not able to use the OTA updates released by the manufacturer. Complainant must be at liberty to perform any of the update, but complainant was unable to perform OTA updates. It no doubt falls under deficiency of service and tantamounts to unfair trade practice on the part of the manufacturer. More so, the Service Centre, who is authorized by the Manufacturer was unable to repair the defects. Despite such deficiency in service, neither they replaced the defective Tablet nor did they refund the money.
Be that as it may, in our considered view, complainant is duped by the Manufacturer and also by the service centre and being the holder of a unworthy high value Tablet she is suffering immense loss and harassment together with mental pain and agony.
Such being the situation, we cannot but to hold that the complainant is entitled to get relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
The case be and the same is allowed on contest against O.Ps.-1, 2 and 3 with cost of Rs.5,000/- each and dismissed against O.Ps.-4 and 5.
O.Ps.-1 to 3 are jointly and severally directed to refund Rs.16,990/- to the complainant within one month from the date of this order and to take back the defective Tablet from the complainant.
O.ps.-1 to 3 are further directed to pay Rs.10,000/- as compensation to the complainant for causing harassment and mental agony within the aforesaid stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case O.Ps -1 to 3 shall be liable to pay penal damage at the rate ofRs.2,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
We pass no order against O.Ps.-4 and 5.
