West Bengal

Dakshin Dinajpur

CC/48/2012

Sri Arup Sarkar, S/O- Arabinda Sarkar - Complainant(s)

Versus

The Manager, Lenovo India Pvt. Ltd. - Opp.Party(s)

24 Dec 2013

ORDER

In brief, case of the complainant / petitioner is that on last 29.08.2011 he purchased a Lenovo Laptop being Model and Serial No. 59-068435 and QB02776304 from the OP No.2 –Technowsoft Computer situated at South Chakbhabani, Balurghat, Dakshin Dinajpur, at a value of Rs.18,630/- including all taxes with a proper Cash Memo being Invoice No.TCS/00799/11-1 dt. 29.8.2011. The said Laptop has /had one year warranty, which was given by the OP No.1 – Lenovo India Pvt. Ltd. The said warranty is / was duly signed by the OP-2, who is the authorized agent of OP-1. After purchasing the said laptop he (complainant) faced problems as there is / was manufacturing defect in it. According to the complainant, he immediately brought into notice of the shop-owner / dealer (OP-2) who told him that there is / was no service centre of Lenovo India Pvt. Ltd. at Balurghat, Dakshin Dinajpur. So, it takes time to rectify the defect of the said laptop. OP-2 also requested him to use the laptop for sometime with an assurance to replace the said defective laptop. As the OP-2 did not take proper step to rectify the defect of the laptop or to replace the same, he deposited his laptop to the OP-2 on 14.7.2012 i.e. within the warranty period. It is the further case of the complainant that he communicated the above facts to the OP-1 by sending an E-mail at their official e-mail ID. But it is unfortunate enough as he did not receive any reply from the OP-1. Lastly, he sent an Advocate’s letter on 24.8.2012 to both the OPs praying for taking necessary step for replacement of defective laptop with new laptop of same make and kind. In spite of receiving the said Advocate letter the OPs did not take any step for replacement of the defective laptop. Hence, he has filed the instant petition of complaint against the OPs praying for replacement of the defective laptop by one new Lenovo Laptop along with other prayers.

 

 

 

 

                                                                                                Contd…P/3

 

            OP-1 has contested the present case by filing a written statement inter alia denying all the material allegations  made by the complainant in his petition of complaint. It is admitted by the OP-1 that the complainant purchased a Lenovo Laptop from the OP No.2 on 29.8.2011 and the said laptop has / had one year warranty. It is the main contention of the OP-1 (so far it can be gathered from its written statement) that there was damage in the laptop due to negligent use of the same by the complainant himself. As such being a case of ‘Customer Induced Damage’ it is / was not possible for OP-1 to repair the laptop under warranty as the same does not cover damage resulting from misuse or improper maintenance. It is the further case of OP-1 that there is / was no any manufacturing defect in the laptop of the complainant as alleged. The defect of hinges was due to negligence use by the complainant himself and he was duly informed that no warranty claim would be entertained as the warranty terms explicitly states that damage resulting from misuse or improper maintenance is not covered under the warranty. However, the complainant was informed that service is assured on chargeable basis. But the complainant refused the offer of service on chargeable basis and he was demanding for replacement of defective laptop by one new Lenovo Laptop. Present case is malafide one. So, OP-1 prayed for dismissal of the instant case.

 

            OP-2 has also contested the present case by filing  separate written statement inter alia denying all the material allegations  made by the complainant in his petition of complaint. It is admitted by the OP-2 that the complainant purchased the laptop in question from it at a value of Rs.18,632/- and it issued a warranty, which is / was valid for one year. It is the main contention of OP-2 (so far it can be gathered from its written statement) that this OP is a reseller of  Lenovo laptop and associate articles engaged by the OP-1. There is / was no any latches on its behalf as it is only reseller of the articles. So, it is not responsible for any compensation.

                                                                                                Contd…P/4

            To prove the respective case the complainant Arup Sarkar himself has been examined as PW-1. On behalf of OP-1, one Sandip Halder has been examined as OPW-1. No witness has been examined on behalf of OP-2 and no document has been exhibited on behalf of any of the parties in this case.

 

            From the evidence and materials on record we have come to the following finding.

FINDING with reasons

 

            Before passing this judgement we have carefully perused the petition of complaint, written statements, evidence of the witnesses and the other materials on record. It is admitted position that complainant Arup Sarkar purchased a Lenovo Laptop, which has / had one year warranty, from OP-2 on 29.8.2011 at a value of Rs.18,632/- including all taxes with a proper Cash Memo being Invoice No.TCS/00799/11-1 dt. 29.8.2011. It is the further admitted position that the OP-2 is a reseller of OP-1 Lenovo India Pvt. Ltd. It is the main contention of the complainant (so far it can be gathered from the petition of complaint and from his evidence as PW-1) that after few days of purchase of laptop he faced problem as the said laptop is / was suffering from lid problem as there is / was manufacturing defect in the same. Then and there he brought into notice of OP-2 regarding the same. OP-2 told him that it would take sometime to rectify the said defect as there is / was no any service centre of the company at Balurghat. OP-2 also requested him to use the said defect laptop for sometime with an assurance to replace the same. As no step was taken on behalf of OP-2 he deposited his laptop to the computer centre of OP-2 on 14.7.2012 i.e. within the warranty period. It is the further case of the  complainant that he also informed the above matter to the OP-1 by sending an e-mail, but no reply was given by OP-1. Ultimately he sent an Advocate letter to both the OPs for taking necessary step to replace the defective laptop by one new Lenovo laptop . But no action was taken on their behalf.

 

                                                                                                Contd…P/5

            OP-1 did not support the above contention of the complainant. According to the OP-1, there is / was no any manufacturing defect in the laptop in question. On the other hand, the defect in the laptop was due to physical damage i.e. ‘Customer Induced Damage’ and the complainant was duly informed that no warranty claim would be entertained as the warranty terms explicitly states that damage resulting from misuse or improper maintenance is not covered under warranty.

 

            At the time of hearing Ld. Counsel on behalf of OP-1 submitted before this Forum that onus completely lies upon the complainant to prove that the laptop in question has / had manufacturing defect, as it is well settled that the onus to prove the allegations is on the person who alleges it. According to the Ld. Counsel, in the present case no evidence is forthcoming from the side of the complainant to show / prove that there is / was any manufacturing defect in the laptop purchased by him. On the other hand, it is evident from the materials on record that there is / was defect in the laptop due to physical damage i.e. ‘Consumer / Customer Induced Damage’. It was the further submission of the Ld. Counsel on behalf of OP-1 that the complainant is not entitled to get any relief in the instant case as the warranty does not cover damage resulting from misuse or improper maintenance. In support of his above contention Ld. Counsel referred to a decision reported in 2010(2) CPR at page 418, which clearly supports the above contention of the Ld. Counsel. It is held by Their Lordships in the said decision that until and unless, the manufacturing defect is pointed out and proved, the manufacturer cannot be asked to replace the vehicle. Ld. Counsel also drew our attention to the copy of warranty, which clearly speaks that damage resulting from misuse or improper maintenance is not covered under the warranty.

 

            Now, we will consider for far the complainant has been able to prove his case. Ld. Counsel on behalf of the complainant submitted

 

 

                                                                                                Contd…P/6

before us that the complainant has filed a certificate issued by one Reetesh Roy Chowdhury, who is the owner of OP-2, to show that the laptop in question had manufacturing defect. Ld. Counsel on behalf of OP-1 submitted that this Forum should not place any reliance upon the said certificate as the same has not been issued by any expert of laptop.

 

            It is to be noted here that no original certificate issued by Reetesh Roy Chowdhury has been filed in this case, but ‘xerox’ copy of the said certificate dt. 18.7.2012  is filed on behalf of the complainant. We have taken judicial notice upon the xerox copy of the said certificate. It is stated in the same that the laptop of Lenovo is being manufactured dispute examining over-viewed. No explanation is forthcoming from the side of the complainant as to why he did not produce the original certificate issued by Reetesh Roy Chowdhury. In our considered view said Reetesh Roy Chowdhury is the best and vital witness on behalf of the complainant to prove that the laptop in question had manufacturing defect. But we are surprised enough as the complainant did not dare to examine him. No explanation is forthcoming from the side of the complainant for withholding him. It is well-settled that suppression or destruction of useful evidence naturally leads to the inference that evidence if produced, would go against the party who withholds it. So, it was rightly pointed out by the Ld. Counsel on behalf of OP-1 that there is / was no any manufacturing defect in the laptop purchased by the complainant and for the said reason the complainant did not examine said Reetesh Roy Chowdhury. It is to be noted here that Reetesh Roy Chowdhury, who issued the said certificate is the proprietor of the Technowsoft Computer (OP-2) and he filed a written statement in this case on last 13.5.2013. There is nothing in the said written statement by which it can be said that the laptop had manufacturing defect.  On the other hand, he  has  stated  in  Para - 8

 

 

 

                                                                                                Contd…P/7

 

of the written statement that the defect was found in the mechanical parts hinges and the same was sent to the Siliguri service centre for repairing. Considering all these aspects we do not reliance upon the xerox copy of such certificate dt. 18.7.2012 issued by Reetesh Roy Chowdhury. So, it is not at all proved that the laptop in question had manufacturing defect.

 

            On the other hand, it is seen from the evidence of OPW-1 Sandip Halder, who is the service engineer of OP-1 that on examining / checking the laptop he found no manufacturing defect, but the defects were due to improper handling and negligent use of laptop. According to him, the right side of hinges was broken, which is / was caused due to mishandling or pressing unnecessarily. We find nothing in his cross-examination to disbelieve the above evidence of OPW-1. The complainant has clearly stated in his evidence during cross-examination that he was informed by OP-1 by a letter that the defect in his laptop was not because of manufacturing defect, but because of its mishandling as per the report of the expert of their office. Except this, it is seen from the materials on record that OP-1 gave written reply on 12.10.2012 to the complainant against Lawyer’s notice dt. 24.8.2012 stating that the defect in the laptop is / was due to physical damage. So, they will provide service to him on chargeable basis, although the laptop is / was under warranty. It is further stated in the said written reply given by OP-1 that they proposed to replace hinges of the laptop ‘free of cost’ considering the complainant’s case as a Special Case. But no communication accepting such offer is / was received by the OP-1 from the complainant.

 

            Judging in the light of our above observation and having regard to the facts and circumstances of the present case as well as with regard to the decision as referred to above on behalf of OP-1, we are inclined to hold that the complainant has miserably failed to prove his case and as such, instant case must fail.

                                                                                                Contd…P/8

 

             Hence, it is

                                                O R D E R E D

 

            that the instant petition of complaint be and the same is dismissed on contest against both the OPs, but in the circumstances without any cost.

 

            Let plain copies of this order be furnished to the parties forthwith free of cost.