Date: 06-05-2015

Sri Debasis Bhattacharya

This appeal emanates out of the Order dated 02-07-2014, passed by the Ld. District Forum, Hooghly in Case No. 83/2014, by which the complaint case has been allowed on contest against the OP.  Being highly aggrieved by and dissatisfied with the said order, OP thereof has preferred this appeal.

Brief facts of the Complainant’s case are that she purchased a Laptop from the OP on 14-11-2012.  However, within two days of its purchase, the same became defunct.  In fact, within a year, the Laptop became defunct 15 – 20 times.  Lastly, within the validity period of warranty, the OP demanded a sum of Rs. 5,000/- to repair the same.  Hence, the case.

The OP raised question about maintainability of the instant complaint case on the ground that it is bad for defect of parties.  Although the Manufacturer as well as its Service Centre were the necessary parties to the case, they have not been impleaded in the instant case for which the instant case is liable to be dismissed.  After few months of its purchase, when the Complainant approached him to repair the Laptop, he informed the service centre of the Laptop manufacturer.  During inspection, it was found that there was no internal problem with the Laptop, but since the button was out of the keyboard platform, it was not functioning properly, which was beyond the scope of warranty condition and as such, the engineer of the service centre estimated the repairing cost at Rs. 5,000/-, to which the Complainant did not agree.

The Ld. District Forum decided the case in favour of the Complainant holding the OP liable for refunding the money which it received from the Complainant as part payment, i.e., Rs. 30,000/- together with compensation and litigation cost for a sum of Rs. 20,000/- and Rs. 5,000/-, respectively.

The moot point for consideration in this appeal is if the impugned order suffers from any factual/legal inaccuracy, or not.

Decision with reasons

Ld. Advocate for the Appellant has submitted that the instant case is not maintainable for non-joinder of necessary parties, viz., manufacturer of the Laptop and its authorized service centre.  The Ld. District Forum failed to appreciate the fact that the Laptop was not suffering from any internal/manufacturing defect, but it was not working properly because of rough handling of the same by the Respondent herself. It is indeed unfortunate that the Ld. District Forum adjudicated the case in favour of the Respondent despite there being not a single piece of cogent document to support the allegations of the Respondent against the Appellant.  The impugned order has caused great injustice to it, and therefore, the same be set aside.

Ld. Advocate for the Respondent, on the other hand, has submitted that as the Appellant did not issue any service call report, save and except the report of 04-10-2013, which was issued by the service centre of the manufacturer of the defective laptop.  In fact, the Laptop used to malfunction every now and then, as a result of which, her study suffered a severe jolt, – she was a student of BCA, but thanks to the frequent non-functioning of the Laptop she not only lost one year, but she was compelled to migrate to pass course from honours course.  Though the Laptop was under the warranty period, the Appellant illegally demanded Rs. 5,000/- from her for repairing the defective Laptop and threatened to seize the same unless due payment was made.  Her repeated pleas for replacing the defective Laptop went in vain, besides she was harassed in other ways also for which a complaint was lodged with the local police station against the Appellant.  Against this backdrop, the impugned order is a fully justified one which be upheld for ends of natural justice to her.

        At the very outset, it requires to be clarified that Consumer Fora, or for that matter any Court of Law is not an astrology centre.  Therefore, it is futile to expect of Consumer Fora to unearth the truth out of mere claim of a litigant.  There is no shortcut to get a favourable decree from a Court of Law save and except making a water tight case together with cogent documentary proof/evidence and any failure on this front is bound to have an adverse impact on the final outcome of a case. 

Vide her petition of complaint, the Respondent has made certain claims/allegations regarding the laptop in question.  It is stated that the laptop in question went out of order within two days of its purchase and thereafter, within a span of just one year, it became defunct 15/20 times.  However, not a single piece of document, either a service call report or any complaint letter, has been placed on record to prove it.  The solitary piece of service call report dated 04-10-2013 is available on record mentions about some problem with the typing keys of the laptop.  Neither the service engineer of the authorized service centre found any machinery problem with the laptop, nor the Respondent made any adverse remark about the laptop in the designated space in the service call report meant for writing customer comments.

The Respondent has taken umbrage of the fact that her request to replace the laptop was not given due consideration by the Appellant.  Generally such electronic devices come with a warranty period of one year.  We have to understand that warranty is given by the manufacturer of a product and not the seller.  Therefore, in case of any problem with the product, one is expected to take up the matter with the manufacturer or its authorized service centre first and in case of unsatisfactory response from their end, one may approach the seller.  No doubt, it’s off the beaten path to approach the Appellant instead of the manufacturer/its authorized service centre at the first instance.

Also important to note that warranty is nothing but a written assurance that some product or service will be provided or will meet certain specifications.  Normally, under the warranty clause, there remains no scope for a consumer to get back the cost of a product.  However, when it is found that a product indeed suffers from inherent manufacturing defect, some leniency is shown in the interest of consumers.  Manufacturing defect as per P. Ramanatha Aiyars Advanced Law Lexion, 3rd Edition, Volume 3, 2005, is an unintended aspect of finished product due to error or omission in assembly or manufacture that causes injury.  As per Black's Law Dictionary, 2nd Edition, manufacturing defect means a deviation from design specifications during production resulting in a product’s defect, frailty or shortcoming.

It is to be borne in mind that manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is nothing but a fundamental basic defect which creeps in while manufacturing a product. To prove such a defect, opinion of an Expert is necessary which is not forthcoming in the present case. On the contrary, it is clearly mentioned in the service call report on record that the problem with the buttons of the keyboard of the laptop in question is not covered under normal warranty.  Therefore, we do not see any wrong on the part of the Appellant to demand repairing cost of the key(s).

That apart, rather than a seller, unless explicitly make any such contract with the purchaser of a product, it is the responsibility of the authorized service centre of a manufacturer to make good a defect.  However, it is indeed surprising that the Respondent did not place the laptop before any of the authorized service centres of the laptop manufacturer even once, rather it is claimed that she took it to the shop of the Appellant.  Knocking at the door of a wrong forum can hardly bring desired result. Still, as it appears from the solitary piece of service call report on record, the Appellant made contact with the authorized service centre of the laptop manufacturer and arranged for its inspection through an engineer.  So, it cannot be said that the Appellant did not render due service to the Respondent.  No congenital defect is proved.   

We find it quite a bizarre articulation of sorts, as advanced by the Respondent, to accept that she could not clear her BCA examination due to erratic behaviour/malfunction of the laptop.  It may well be that availability of gadgets like desktop computer/laptop comes in handy for the purpose of study, but it is unthinkable that laptop is indispensible to clear an examination; after all, even as of today, only a small section of students have the privilege of having personal computers at their disposal.    

Even if speculation is the test, papers on record more readily supports contrary inferences than what has been drawn by the Ld. District Forum in the impugned order.   In our considered opinion, the facet of opinion of the Ld. District Forum affords a wholly unacceptable basis for drawing a concurrent view as it did on pure surmise and conjecture, and implausible ones at that.

In the result, the appeal succeeds.

Hence,

ORDERED

that the appeal be and the same is allowed on contest against the Respondent, but in the given facts and circumstances of the case, without any order as to costs.  The impugned order is hereby set aside. As a result, the complaint case stands dismissed.