RAJESH V/S CECILY - Consumer Court Case

Kerala

Ernakulam

CC/17/275

CECILY - Complainant(s)

Versus

RAJESH - Opp.Party(s)

30 Dec 2023

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM

ERNAKULAM

Complaint Case No. CC/17/275

( Date of Filing : 07 Jul 2017 )

1. CECILY

FORT KOCHI

...........Complainant(s)

Versus

1. RAJESH

ERNAKULAM

............Opp.Party(s)

BEFORE:
	HON'BLE MR. D.B BINU PRESIDENT
	HON'BLE MR. RAMACHANDRAN .V MEMBER
	HON'BLE MRS. SREEVIDHIA T.N MEMBER

PRESENT:

Dated : 30 Dec 2023

Final Order / Judgement

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 30^thday of December 2023.

Filed on: 07/07/2017

PRESENT

Shri.D.B.Binu President

Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member

C C No.275/2017

COMPLAINANT

Miss. Cecily Shibi Netto D/o. Jackson Netto , H. No. 1/1628, South Thamara Parambu, Fort Kochi-682001. Phone No. 9947592182

OPPOSITE PARTIES

Mr. Rajesh. P HP World - Sysmantech Near Saraf Hospital Sreekandath Road, Ravipuram Ernakulam-682016.

(O.p1 rep. by Adv.V.A.Ajmal, Ashirwad, M.M.Road, Kochi-18)

2. Mr. Sanal. J HP Authorised Services (India) Limited (Old name - Ensure Support Services (India) Limited) HP Authorised Service Centre First Floor, No. 39/3723, Chittor Road, Ernakulam.

F I N A L O R D E R

D.B. Binu, President.

A brief statement of facts of this complaint is as stated below:

The complainant, who is a Full-time Research Scholar pursuing a PhD, filed a complaint under Section 12 (1) of the Consumer Protection Act, 1986. She purchased a laptop for Rs. 34,250 on 08.04.2016 for her research purposes from M/s. Symantec (HP World). However, the complainant encountered several issues with the laptop, including hard disc problems, recovery issues, display issues, keyboard issues, and an ant infestation between 13.07.2016 and 16.11.2016. They incurred additional expenses for courier charges and traveling due to these issues.

The laptop continued to have problems, including a keyboard issue and hard disc issue from 02.07.2017, causing disruptions in their research work. They experienced loss of time, energy, and focus, and had to reinstall research-related software and repeat work due to formatting the laptop. They seek a refund of Rs. 35,810 (laptop price, CD kit courier charges, and traveling expenses) and compensation for mental agony and harassment.

They also request relief from the poor customer service provided by M/s. Symantec (HP World) and associated parties. They have attached details of the laptop purchase, courier charges, service call reports, and email correspondence with customer care staff as evidence.

2). Notice

The Commission issued notices to the opposite parties. First, the opposite party received the notice and submitted their version. However, the second opposite party received the notice but did not file their version, resulting in ex-parte proceeding. The Commission issued a notice to the third opposite party, but it was returned as “Left” as per the endorsement of the postal department. The complainant has not provided the correct address for the third opposite party so far.

3)THE VERSION OF THE FIRST OPPOSITE PARTY

The complaint mentioned above is challenged on both legal and factual grounds. The complainant is accused of withholding crucial information that, if disclosed, would likely result in the dismissal of their claim. The first opposite party, is stated that to bear no liability for the complainant's claims. Sysmantech operates within the guidelines and regulations set forth by HP, the parent company. HP provides warranties to its customers, and the first opposite party informed the complainant about the one-year warranty offered by HP, even presenting warranty details on the laptop, which include contact information and email addresses. Customers can easily access warranty information online and have the option to extend their warranty periods

The complainant, in this case, is portrayed as a customer who availed themselves of the warranty provided by HP. The complainant purchased the laptop from Sysmantech on 8/4/2016, as evidenced by invoice number SMTR/104/2016/2017. The invoice indicates that the prescribed warranty period had expired, and the complainant cannot claim that the warranty was not renewed. Furthermore, the complainant failed to provide any details about the warranty, its renewal, or its existence, suggesting a deliberate attempt to mislead the commission to secure a favourable outcome from the commission.

The opposite party stated that the complainant should have provided warranty details if they had a legitimate claim against the first opposite party. During the warranty period, the company is obligated to rectify any complaints made by the customer per the terms outlined in the warranty regulations established by the company. Therefore, the opposite party requests that the complaint be dismissed with costs.

4) Evidence

The complainant submitted 13 documents and a proof affidavit

The complainant had mounted the box for cross-examination; however, the opposite party was not ready for cross-examination. The complainant submitted proof affidavit along with 13 documents, which were marked as Exhibits A-1 to A-13.

Exbt A1. Purchase invoice no. SMTR / 104 / 2016 / 2017 dated 08.04.16, M/s. Symantec

Exbt A2. Invoice cum delivery challan no. M/s. HP Softcom India Pvt. Ltd. RD / 1617 PDC8942 dated

Exbt A3. Email from IP Softcom India Pvt. Ltd. Dated 20.07.2016 & 21.07.2016

Exbt A4. Service call report no. 11256 dated 13.07.2016, M/s. Ensure Support Services (India) Limited.

Exbt A5. Service call report no. 10009 dated 27.07.2016, M/s. Ensure Support Services (India) Limited.

Exbt A6. Service call report no. 15484 dated 26.09.2016, M/s. Ensure Support Services (India) Limited.

Exbt A7. Service call report no. 14606 dated 16.11 2016, M/s. Ensure Support Services (India) Limited.

Exbt A8. Email to and its reply from HP service head including asking for contact details dated 21.07.2016.

Exbt A9 email response to HP service head and their reply dated 21.07.2016.

Exbt A10. email to HP service head dated 27.07.2016.

Exbt A11. Email from the HP service head dated 28.07.2016 asking for service call report details, address and contact details, and serial number of the product.

Exbt A12. email reply to HP service head dated 28.07.2016.

Exbt A13. email to HP service head dated 15.11.2016.

5) 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?

6) The issues mentioned above are considered together and are answered as follows:

The complainant has been consistently absent since October 3, 2022. The Commission issued a notice to the complainant to provide the correct address for the third opposite party, but the complainant has not provided the correct address for the third opposite party so far. Despite efforts by the Commission's office to contact the complainant by phone on November 11, 2023, they have failed to appear at subsequent case hearings before the Commission. As of now, the complainant has not made any appearances.

Despite being provided with multiple opportunities, the complainant did not appear before the Commission thereafter and remained continuously absent and have not presented any evidence till date. Despite several chances given to the complainant to proceed with the case, she has shown no interest in doing so. The correct address for the third opposite party (manufacturer) is essential for the further proceedings of the case.

Due to the complainant's persistent absence and lack of evidence, the commission has no choice but to dispose of the complaint based on the available evidence. Consequently, the commission proceeds with the disposal of the complaint.

Top of Form

In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.

In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “

"Hindustan Motors v. Shivakumar and Others" that a dealer cannot be held accountable for defects in manufacturing. The complainant did not submit a request to appoint an expert to inspect the product in question for manufacturing defects. This aligns with the ruling of the Honorable National Commission in "Dr. K. Kumar Advisor (engineering), Maruti Udyog Ltd. vs Dr. A.S. Narayana Rao & Another," which underscored the importance of expert testimony in proving manufacturing defects. Therefore without such proof, the complainant's allegations remain unsubstantiated.

It is important to note that the manufacturer was not involved in these proceedings. The accurate address of the third party (manufacturer) is crucial for the continuation of the case. As of now, the complainant has not yet provided the correct address for this third opposite party.

After careful consideration, the case presented by the complainant is considered to be without merit. As a result, the following orders have been issued.

ORDER

Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. These issues are found unfavourable to the complainant. Consequently, the complaint is dismissed. No cost.

Pronounced in the Open Commission this is the 30^th day of January 2024.

Sd/-

D.B.Binu, President

Sd/-

V.Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member