BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of December 2013
Filed on : 13/05/2013
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No. 342/2013
Between
Nilja K. Baby, : Complainant
Kakkanattu house, (party-in-person)
Cherikkode P.O.,
Kannur-670 631.
Vs
1. Manager, : Opposite parties
Online IT Shoppe,Online IT Towers,
Ravipuram Road,
Valanjambalam, Cochin-16.
2. Thoshiba India Pvt. Ltd. (2nd O.P. by adv. George
P.C. Division, 6th floor, Cherian Karippaparambil
Dr. Gopal Das Bhawan, H.B. 48, Panampilly Nagar,
Bara Khamba Road, Kochi-682 036)
Delhi-110 001, India.
Rep. by its Managing Director.
3. Manager,
Combo Mobiles, 1st floor,
VP. Complex, Wayand Road,
Calicut.-673 011.
O R D E R
Beena Kumari V.K.,Member
The facts of the case is as stated below:
The complainant purchased a laptop valued Rs. 40,900/- from 2nd opposite party on 01-09-2010 and within a period of 2 months, the laplop was found defective. i.e. on 03-11-2010 the Hard Disk of the laptop was replaced by the service centre at Calicut. Within a period of 9 months ie. on 02-07-2011 the adaptor and Web cam of the laptop were found defective and were replaced by the very same service centre on 02-07-2011. After 20 days the lap top was found dead. Then the mother board was replaced. By the time the warranty period was over. Soon after the warranty period MIC, speaker, Key board, battery etc. were found malfunctioning. In view of the recurring defects the complainant filed this complaint seeking refund of the cost of the laptop of Rs. 40,900/- with interest at 12% p.a. from the date of purchase. The complainant also sought for Rs. 30,000/- towards compensation for the mental agony suffered and for Rs. 5,000/- towards costs of proceedings.
2. The version the 2nd opposite party is as follows:
The 2nd opposite party contended that the complaint is vexatious, baseless and is liable to be dismissed, that the complainant had suppressed material facts relevant for the adjudication of the complaint, that the complainant took delivery of the laptop after being satisfied with the working of the same, that 2nd opposite party is liable to repair or replace the Field Replaceable Unit (FRU) with new or quantified used FRU during the one year warranty period and 2nd opposite party duly discharged its responsibility in this regard, that the Hard Disk of the lap top was replaced with new one on 06-07-2011, that again the defective adaptor, Webcam, were replaced on 11-07-2011, the cracking sound of the lap top was rectified by replacing the mother board on 26-07-2011 and it was returned after 10 days observation on 14-08-2011. Thereafter no complaints were received by any of the opposite parties till the filing of this complaint before this Forum. The 2nd opposite party submitted that had there been any sort of manufacturing defect in the LCD, the complainant would not have been able to use the laptop for such a long time. It is contended that without establishing manufacturing defect in the product purchased, the complainant can not claim replacement of the product with a new a new one in view of the decision of the Hon’ble National Commission in Mahindra & Mahindra Ltd. Vs. Bothakur Desai and another (II (1993) CPJ 225 (NC). In the said case it was held that if a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced, then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the whole machinery without sufficient cause. It is also contended that the replacement of lap top beyond the warranty period is not justified in view of the decision of the Hon’ble Supreme Court in Maruthi Udyog Ltd Vs. Susheel Kumar Gabgotra and Anr reported in 2006 (4) SCC 644. Therefore it is requested that the replacement of the laptop with a new one may be held unsustainable. The 2nd opposite party brought to the notice of the Forum the decision of the National Commission in Punjab Tractors Ltd. Vs. Vir Pratap reported in (1997) II CPJ 81 (NC) wherein it was held that where the complaints were duly and promptly attended to by the opposite party and reliable evidence was produced, the complainant is not entitled to any relief, that on the present case opposite party had taken care of all the complaints raised by the complainant and they were promptly attended to and rectified the same at the earliest, that the complainant had not allowed the opposite party to replace the sensor of the laptop, that the complainant annexed no expert opinion to prove the alleged defect in the LCD, that the Forum is bound to determine the alleged defects on the basis of clear evidence by way of expert opinion as it was held by the Kerala state commission in Sabeena Cycle Emporium Chennakhada Vs. Thajes Ravi : M.R. Pancha Villa Vedar Hzhhone P.O. cited in (1992) 1 CPJ 97. It is pointed out by the 2nd opposite party that the complainant had used the lap top approximately for 3 years and without any complaint for approximately for 2 years, that in view of the above facts the complainant is not entitled any of the reliefs claimed. Therefore the complaint may be dismissed.
3. No oral evidence adduced by the complainant. The documentary evidence adduced by the complainant are marked as Exts. A1 to A5. The opposite party adduced no oral or documentary evidence.
4. We heard both sides and considered the various contentions raised by both sides the complainant purchased the lap top for Rs. 40,900/- on 01-09-2010 with one year warranty period. Within 2 months of purchase i.e. in November 2010 the laptop was found mal functioning and the Hard Disk of the laptop was replaced on 03-11-2010. Subsequently the sound of the speaker became unclear, the charger. Web cam and adaptor were found malfunctioning and on 11-07-2011 the laptop was returned after replacing the speaker, webcam and adaptor. After two weeks, cracking sounds developed in the laptop and this time the Mother Board was replaced and the same was returned on 14-08-20111. As soon as the warranty period was over the laptop became useless that MIC, Speaker, Key board battery etc. were found malfunctioning and the complainant claimed replacement of the laptop with a new one. The opposite party on the other hand contended that in the absence of an expert opinion that the lap top was suffering from any manufacturing defect, the above claim of replacement of the laptop is not sustainable and hence not allowable.
5. It is seen that the complainant started complaining about the newly purchased lap top from the 2nd month of its purchase and through out the 1st one year warranty period the complaints reported to the opposite parties are many. It is true that all the complaints were duly attended to by the opposite parties. It is also true that the complainant could enjoy the newly purchased lap top only for the first two months. Therefore the various judicial pronouncements do not squarely applicable to the case of the complainant, since various defects reported during the warranty period and various defects continued ever after the warranty period and many of the important parts of the lap top were replaced during the warranty period itself. Since the malfunctioning of the lap top continued from the 2nd month
of the purchase. In view of this special circumstance we feel that it is only just, fair and reasonable to replace the defective parts with new one free of cost and opposite parties are directed to do so. We also direct that the replaced parts shall be given warranty for one year from the date of replacement.
6. In the result, the opposite parties are directed to repair the lap top and make it in working condition by replacing all the defective parts with new parts free of cost and the new parts replaced shall be given one year warranty from the date of such replacement. Ordered accordingly.
The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of December 2013.
Sd/- Beena Kumari V.K.,Member
Sd/-
A Rajesh, President.
Sd/-
Sheen Jose,Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of retail invoice dt.01-09-2010
A2 : Copy of receipt dt. 01-09-2010
A3 : Copy of service Report
dt. 03-11-2010
A4 : Copy of service report
dt. 02-02-2011
A5 : Copy of service report
dt.26-02-2011
Opposite party’s exhibits: : Nil
