w w w . L a w y e r S e r v i c e s . i n

M/s. Oxygen the Digital Shop, Pulimoottil Arcade, Kottayam & Another v/s Namadevan.L., Anna Garments & Others

    Appeal Nos. 621 of 2013 & 660 of 2013
    Decided On, 21 June 2016
    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
    By, MEMEBR
    For the Appellants: Saji Mathew, M/s. S.G. Chancery Chambers, S. Fathima, Advocates. For the Respondents: Prabhu Vijayakumar, M/s. Maya Chambers, Advocates.

Judgment Text
Common Judgment: (A. Radha : Member)

Both these appeals arise out of the order passed in C.C. No.289/2010 on the file of CDRF, Kottayam. The 1st and 2nd opposite parties are the appellants in A-621/13 & 660/13 respectively and 1st respondent is the complainant.2. The case of the complainant is that on 25/3/2010 he had purchased a laptop from the 1st opposite party manufactured by the 2nd opposite party for an amount of Rs.35,467/-. It is alleged in the complaint that on 16/7/2010 the laptop was not working and approached the 1st opposite party and entrusted it for service. Subsequently it was returned with a direction to entrust the laptop with the 2nd opposite party. On 31/7/2010 the 2nd opposite party issued a job sheet to the complainant after noting the defects 'Physical damage on left back corner, scratches on body'. After 5 days the technician of the 2nd opposite party contacted the complainant and informed that the mother board of the laptop was damaged and that cannot be repaired. It is stated in the complaint that the laptop was first handed over to the 1st opposite party’s service centre where it is noted that the problem as 'not on'. If there had any scratches or damages in the laptop the 1st opposite party would have noted in the goods inward note supplied to the complainant. The complainant denies that the damage had occurred while it was in the custody of the complainant. It was assured by the opposite parties that the Sony Vio Laptops are of best quality and there is replacement warranty for one year. Believing the words of the opposite parties the complainant purchased the laptop. The 2nd opposite party issued a vague reply stating that the laptop was not functioning due to the damage caused while mis-handling it by the complainant and not due to any manufacturing defect or other defects. The complainant alleges that the laptop supplied to the complainant is a defective one and is entitled for a new laptop instead of a defective one. The complaint is filed for replacement with a new laptop and also for Rs.1 Lakh towards mental agony. The complainant is an Astrologer and is using the laptop for taking printout for horoscope which is highly necessary for his livelihood. Hence filed this complaint.

3. The 1st opposite party is a business concern and is selling the products of various companies on a meagre margin. The sale of laptop to the complainant is admitted. When the complainant approached with the complaints of laptop on 16/7/2010, the 1st opposite party directed the complainant to the 2nd opposite party, the authorized service centre as there had the defect to the lap top as ‘not on’. The 1st opposite party did not exactly know about the actual cause for the defect in the laptop owned by the complainant. The communication between the complainant and the representative of the 2nd opposite party are not within the direct knowledge of the 1st opposite party. The 1st opposite party had not given any promise to repair or replace the laptop at the time of purchase contrary to the warranty conditions offered by the manufacturer. It is an admitted fact that the laptop was working upto 15/7/2010 after the purchase. Hence no deficiency in service can be attributed upon the 1st opposite party and the complaint is only to be dismissed.

4. The 2nd opposite party is the manufacturer of Sony Laptop and it is admitted that the 1st opposite party is the dealer of the 2nd opposite party. It is contended that the 2nd opposite party has principal to principal relationship with its dealers. The laptop was purchased on 25/3/2010 from the 1st opposite party and used until 15/7/2010 which itself shows that the alleged defect in the laptop cannot be a manufacturing defect. If there had any manufacturing defect the complainant would not have been able to use the laptop for 4 months without any problem. The other contention raised is that there is no report of an independent expert with regard to the alleged defect in the product. There is no reliable evidence produced by the complainant in support of his case that he had suffered loss due to the defect in the laptop and complainant is not entitled to any relief. The laptops are provided with warranty which is governed by terms and conditions and warranty period is restricted to one year. It is also specifically stated in the warranty condition that the damage or loss to any software problems, data or removable storage media or damage due to acts of god and accident, misuse abuse, negligence, commercial use or modifications to product etc. do not cover warranty. The opposite party is not liable to provide warranty in cases of mis-handling of the laptop and physical damage caused to the laptop due to the act of the consumer as per clause-VIII of the warranty terms. It is clear that the alleged laptop of the complainant had physical damage caused on the left back corner due to the negligence of the complainant and the scratches on the body might have been caused due to mis-handling of the laptop. Since the complainant violated the terms of warranty the opposite parties are not liable to provide warranty cover contemplated between the parties. The complainant as an astrologer is indulged in commercial use by taking horoscope etc. and availing such service the complainant will not come under the ‘consumer’ and the complaint is not maintainable. The job sheet dated 31/7/2010 issued by the service centre of the 2nd opposite party clearly mentioned that the laptop is out of warranty as it is physically damaged. The warranty provided to the complainant is not an unconditional one and is restricted to the terms and conditions mentioned in the warranty. The complainant failed to prove any manufacturing defect in the laptop nor any deficiency in service on the part of the 2nd opposite party. Hence the 2nd opposite party is not liable for replacement of the laptop of the complainant. The complaint is filed merely to harass the opposite parties and there is no ground for awarding any compensation.

5. The complainant was examined as PW1 and Exbts: A1 to A7 were marked. No oral evidence or documents adduced by opposite parties.

6. The appellant in appeal No.621/13 is the 1st opposite party who is the dealer of the 2nd respondent. The purchase of laptop from the appellant is admitted and it is also an undisputed fact that the laptop was in good working condition for 4 months after the purchase of the laptop. It is not in dispute that the laptop is having warranty for one year. The appellant received the laptop on 16/7/2010 which is evidenced by Exbt: A3 wherein it is stated the problem 'not on' in the goods inward note. The appellant directed the 1st respondent to the 2nd respondent who is the authorized service centre of the appellant. The service job sheet issued by the 2nd respondent’s reception remarks showing 'ADP 00095399 physical damage on left back corner, scratches on body' - so it is clear from documents that the laptop produced by 1st respondent is having physical damage. Thereafter it is the case of 1st respondent that the 2nd respondent refused to rectify the defects having physical damage as it does not cover warranty. While the respondent brought the laptop for repair the goods inward notes clearly stated that the problem is 'not on'. Thereafter the 1st respondent was directed to contact the 2nd respondent. The laptop was not serviced or rectified by this appellant. Hence no deficiency in service can be attributed upon this appellant. It is on the advice of the appellant the 1st respondent approached the 2nd respondent who is the authorized agent of the manufacturer. The 1st respondent has not proved any manufacturing defect with an expert opinion. The appellant had not serviced the laptop on acceptance. The warranty is based on the terms and conditions and being a dealer of the 2nd respondent no liability can be attributed upon the appellant.

7. The counsel for the appellant in A-660/13 who is the authorized agent of the manufacturer submitted that the 1st respondent/complainant purchased the laptop vio from the dealer on 25/3/2010. There had no complaint until 16/7/2010. It is on the advice of the 2nd respondent the 1st respondent/complainant contacted and brought the laptop to the appellant. The purchase is admitted by the appellant and there is no case for the 1st respondent that there had any problem within the 4 months until 16/7/2010 which itself shows that there had no manufacturing defect and was in fully working condition. It is settled principles of law that the parties are bound by the warranty terms and in this case the laptop purchased from the 2nd respondent is having warranty for one year. The appellant on acceptance of the laptop found out that the laptop is having physical damage on left back corner and also scratches on the body which certainly would cause by mis-handling of the 1st respondent. It is specifically mentioned in the warranty condition that the damage due to acts of god accident, mis-use, negligence etc. will not cover the warranty condition. At the time of delivery of the laptop the 1st respondent was satisfied with the working of laptop and had acknowledged the same and there had no defect for 4 months after the purchase. It is submitted that the warranty provided is reflected by clause-VIII of the terms of the warranty. Hence the physical damage does not cover the warranty conditions. It is also argued that the allegation of manufacturing defect is to be proved by an expert envisaged under the Consumer Protection Act which is absent in this case. There is no expert evidence to the effect that the laptop is having any manufacturing defect contrary to that there is physical damage which is clear from the evidence. It is also argued that the complainant is not a consumer as he is making profit out of the use of the laptop by taking horoscope. On that ground also the complaint is only to be dismissed. The Forum Below overlooked the main contention regarding the expert opinion while alleging manufacturing defect. In the absence of reliable evidence in support of the case, the respondent is not entitled for the claim put forth in the complaint.8. The counsel for the respondent submitted that the laptop purchased from the appellants could be used only for 4 months after payment of Rs.35,467/-. It is true that the laptop worked for 4 months but at the same time the laptop is having a warranty for one year. The appellants are liable to repair the laptop during the warranty period. The respondent being an astrologer was using the computer as a means of livelihood. When the laptop was given to the 1st opposite party no physical damage noticed to the laptop. Moreover, the respondent could not use the laptop even during the warranty period. The appellants/opposite parties are liable to rectify the defects and are liable

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for the mental agony caused to the respondent and to pay compensation. The Forum Below rightly allowed the complaint in favour of the complainant. 9. We have heard both the counsels in detail and had gone through the documents on record. It is not in dispute the purchase of laptop in question from opposite parties. It is also not disputed that the laptop is having one year warranty. The complainant/1st respondent approached the Forum due to the manufacturing defect in the laptop. The onus of proving the alleged defect in the laptop lies upon the complainant/1st respondent being manufacturing defect. The respondent on the given facts has failed to discharge the onus to prove the case. It is settled law that the manufacturing defect is to be proved by expert opinion. Moreover, parties are bound by the terms and conditions of the warranty. In the absence of the expert opinion we are of the considered view that the complainant failed to prove his case and the appeals are only to be allowed. In the result, both the appeals are allowed setting-aside the order passed by the Forum Below. The office is directed to send a copy of this order to the Forum Below along with LCR.