State Consumer Disputes Redressal Commission
Sony India Pvt. Ltd. vs Jatin Saluja on 6 May, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 879 of 2014
Date of institution: 2.7.2014
Date of Decision: 6.5.2016
Sony India Pvt. Ltd., A company incorporated under the Companies Act,
1956 having its Registered Office at A-31, Mohan Cooperative Industrial
Estate, Mathura Road, New Delhi-110044 through its Authorised
Signatory.
Appellant/Op No. 4
Versus
1. Jatin Saluja son of Sh. Sandeep Saluja, Resident of Amritsari Gate,
Inside Bowli Ram Dayal Gali, Bharat Nagar, Ferozepur City, Punjab.
Respondent No.1/Complainant
2. Gupta TV Centre, Sadar Bazar, Ferozepur Cantt. Punjab
3. Deekay Electrovision, Ghumar Mandi Chowk, Ludhiana, Punjab
4. Sony Authorized Service Centre, SCO-39-G, LGF, BKS Nagar
Market, Opposite Police Station, Ludhiana, Punjab.
Respondents No.2 to 4/Op Nos. 1 to 3
First Appeal against the order dated 20.3.2014
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
First Appeal No. 879 of 2014 2
Present:-
For the appellant : Sh. Amit Arora, Advocate
For respondent No.1 : None.
For respondent No. 2 : None.
For respondent Nos. 3&4: Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No. 3 (hereinafter referred as Op No. 3) has filed the present appeal against the order dated 20.3.2014 passed by the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter referred as the District Forum) in consumer complaint No. 488 dated 14.10.2013 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as complainant) was allowed with the direction to Ops to replace the Laptop in question with a new one and also pay Rs. 2,000/- as compensation and Rs. 1,000/- as litigation expenses.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Ops on the averments that he purchased one Notebook Sony Vaio Model No. VPCEB46FG/B E1 and serial No. 7004449 alongwith its Bag and Quickheal Antivirus on 8.4.2011 for a sum of Rs. 46,500/- vide invoice No. GTV/11-12/10 dated 8.4.2011. This Laptop was having a warranty for one year and a separate warranty card was also issued by Op No. 1 wherein it was specifically mentioned that Laptop was covered under warranty till May, 2012. After purchase, the complainant noticed that there was some problem in the working of the Laptop. It was not getting the power to start, touchpad and First Appeal No. 879 of 2014 3 speakers. Complainant took Laptop to Op No. 1 and they did minor service and handed over the Laptop to the complainant but still the complaint of the complainant was same. Instead of rectifying the problem, Op No. 1 put of the matter on one pretext or the other. In the meantime Op No. 4 i.e. manufacturer Company issued an other offer for its customers to deposit Rs. 2500/- with any Authorised Dealer of the Company and then there will be extended warranty for next two years. Accordingly, complainant deposited Rs. 2500/- with Op No. 2 on 5.4.2012 and got the extended warranty of the Laptop for extended period of two years. However, the problems in the Laptop continued. He again took it to Op No. 1, who advised to take it to Op No. 3 and accordingly, he took the Laptop to Op No. 3, who issued the job card dated 19.8.2013 and asked him to come after 2-3 days but since then the Laptop is with Op No. 3. They have neither returned it nor rectified the problem despite visit of the complainant several times to their office. Not to rectify the problem and to return the Laptop amounted to deficiency in service on the part of Ops. Hence, the complaint with the direction to Ops to refund a sum of Rs. 46,500/- alongwith interest @ 2% per mensum.
3. Complaint was contested by Ops. Op No. 1 in its written reply/version took the preliminary objections that the complaint was false, frivolous and vexatious to the knowledge of the complainant; complainant had not come to the Forum with clean hands as he suppressed the material facts from the Forum; complicated questions of law and facts were involved, requiring lengthy evidence, which was not possible in summary procedure, therefore, the matter was First Appeal No. 879 of 2014 4 required to be relegated to the Civil Court. There was no deficiency in service on the part of this Op. He was just a Dealer of Op No. 4. This Op had given one year warranty on behalf of Op No. 4 whereas Op No. 3 was authorised service centre, who repaired Laptop in question and job sheet was issued by Op No. 3. Extended warranty was issued by Op No. 2. On merits, purchase of Laptop was admitted. However, it was denied that there was any problem in the Laptop. It was denied that complainant took the Laptop with Op No. 1 and they rectified the minor problems. This Op had no knowledge about any offer of extended warranty given by Op No. 2. There was no deficiency in service on the part of this Op, therefore, complaint was without merit against this Op. It be dismissed.
4. Op Nos. 2 to 4 filed their joint written reply taking preliminary objections that the complaint was false, frivolous, vexatious and baseless, therefore, liable to be dismissed. Op nos. 1 & 2 were authorised Dealer of Op no. 4 and Op No. 3 is Service Centre of Op No. 4. The allegations made in the complaint are contrary and inconsistent. Op No. 4 was engaged in the business of Distribution and making of various electronics items under the brand name 'Sony' and held a reputed position in the field of electronics, therefore, they had wide network of sale/service Dealers. It was admitted that complainant purchased Laptop Model No. VPCEB46FG/B E1 and serial No. 7004449 on 1.12.2011 from Op No. 1 and it had a warranty for one year. Ops were liable to provide free of cost repair/replacement of spare parts of its products only during the warranty period that too when the product was proved to be First Appeal No. 879 of 2014 5 defective due to improper material or workmanship. When the defect had arisen due to external cause beyond the control of this Op then these Ops were not liable. Laptop was more than 2.5 years old and the alleged defect in the Laptop appeared on 19.8.2013 and the defects were duly rectified by replacing the Laptop. When the Laptop was deposited with Op no. 3, the same was found to be scratchy and covered in dust, therefore, the defect, if any, occurred due to mishandling of Laptop by the complainant and Clause 8 of the warranty sheet, they were not liable to pay for it or to rectify it. The complainant had failed to lead any independent report of expert as required under Section 2(1)(a) of the Act with regard to any alleged defect in the laptop. Therefore, it was not liable to be replaced. On merits, averments stated in the preliminary objections were reiterated. Purchased of Laptop by the complainant and warranty card, extended warranty given by Ops was admitted. It was further admitted that Laptop was deposited with Op No. 3 with some problem, which were rectified but the complainant did not turn up to get back the Laptop. There was no deficiency in service on the part of these Ops. Therefore, the complaint was without merit, therefore, it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, warranty card Ex. C-2, bill Ex. C-3, job sheets Ex. C-4, bill Ex. C-5, job sheets Exs. C-6 to 8, part of job sheet Ex. C-9. On the other hand, Op No. 1 had tendered First Appeal No. 879 of 2014 6 into evidence affidavit of Vijay Kumar as Ex. Op-1/1. Op Nos. 2 to 4 tendered into evidence affidavit of Meena Bose as Ex. Op-2 to 4/1.
7. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was allowed after observing that there was defect in the Laptop. Even if there was no manufacturing defect but in case a defect appeared, it was also covered under Section 2(1)(f) of the Act. Large number of Job Cards show that complainant visited Ops number of times but they were unable to rectify it, therefore, complaint was allowed with the direction to Ops to replace the Laptop alongwith compensation and litigation cost as referred above.
8. Aggrieved with the order passed by the learned District Forum, appellant/Op No. 4 has filed the present appeal. In the appeal, it has been argued by the counsel for the appellant that when the Laptop was sold to the complainant on 8.4.2011 by Op No. 1, it was perfectly in the working condition and limited warranty for a period of one year was given by Op No. 1. However, on deposit of another amount of Rs. 2500/- on 5.4.2012 extended warranty of two years was given. The complainant used the Laptop for a period of 2.5 years. In case the complainant had come with Laptop on 19.8.2013 with some problem, which was rectified. Without any independent expert report, no findings could be recorded that Laptop was having any manufacturing defect, the District Forum has ordered to replace the Laptop with a new one. However, order is not justified keeping inview the evidence on the record. District Forum had wrongly First Appeal No. 879 of 2014 7 allowed the complaint. Therefore, the order so passed by the District Forum is liable to be set-aside.
9. We have heard the learned counsel for the appellant Mr. Amit Arora, Advocate, however, none appeared on behalf of respondents No. 1 & 2 and respondents No. 3 & 4 were ex-parte.
10. Purchase of Laptop is admitted. It is also admitted the original warranty was for one year and extended warranty for two years was taken after deposit of Rs. 2500/- on 5.4.2012, then Laptop had extended warranty upto May, 2014. However, during the warranty period, there were problems in the working of the Laptop. Complainant has placed on the record his own affidavit giving the details of defects in the Laptop as mentioned in the complaint. He has further placed on the record warranty card Ex. C-2, extended warranty Ex. C-3 and Service Job Sheet dated 19.8.2013 Ex. C-4 in which complaint was "not getting on, touchpad not working properly, speaker to be check, total formatting permission taken". Ex. C-5 is the bill. Exs. C-6, 7 & 8 are the service sheets. Whereas on the other hand, we have the affidavit of Mr. Vijay Kumar, Proprietor of Gupta TV Centre Op No. 1 and affidavit of Meena Bose on behalf of Op Nos. 2 to 4. No documentary evidence was produced on the record.
11. No doubt that there can be some defect in the working of the Laptop. However, the learned District Forum has passed the order for refund of the cost of the Laptop on the plea that even if there is no expert report showing that there is any inherent manufacturing defect but Laptop has a defect and defect has been defined under Section 2(1)(f) of the Act, which reads as under;-
First Appeal No. 879 of 2014 8
"2. Definitions. - (1) xxxx xxxx xxxx xxxx
(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;"
But every defect cannot be a manufacturing defect. There can be a working defect also because the Laptop was used by the complainant for a period of more than two years. According to warranty condition No. 8, the warranty provided by Ops is as under:-
"This Warranty shall not apply to damages caused to the product by accident, lightening, ingress of water, fire or Acts of God, improper ventilation, dropping or excessive shock or any external cause beyond Sony's control and/or any damage caused due to tampering of the product by an unauthorised agent."
This defect was required to be rectified by Ops in case it was due to improper material or workmanship. So far the defects are concerned, Ops have admitted that whatever defects were pointed out by the complainant in the job card dated 19.8.2013, those were rectified but the complainant did not come forward to get it. However, this fact has been denied by the complainant, rather, he in his complaint has stated that he visited Op No. 3 several times but he did not hand over the Laptop after rectification. Before the District Forum, he has not First Appeal No. 879 of 2014 9 placed on the record any document whereas in the appeal, he has placed one document dated 12.11.2013 and detail of calls given to the complainant but no application has been submitted by the counsel for the appellant to place on record these documents. When this document was not referred in the pleadings and was not tendered before the District Forum and without any application to get permission to place on record these documents, these documents cannot be considered. In case there was a defect in the working of the Laptop then Ops were under obligation to rectify the same during the warranty period. Mere defect does not entitle the complainant for replacement of the Laptop or refund of the bill amount. The findings of the District Forum that in case defect is there, even if there is no manufacturing defect, Ops are required to replace/refund the amount, however, these observations are incorrect observations because District Forum has failed to distinguish between the manufacturing defect and the working defect. Since the complainant has not been able to prove on the record any manufacturing defect, therefore, the complainant cannot be held entitled to refund of the bill amount of replacement of the Laptop. However, there is a working defect, therefore, Ops are under legal obligation, during warranty period to rectify the defects in the working of the Laptop.
12. It was further argued by the counsel for the appellant that in case there was no deficiency in service then Ops were not liable to pay cost of litigation and compensation. As observed above, before the District Forum they did not place any document on the record that the Laptop deposited by the complainant was rectified or any call was First Appeal No. 879 of 2014 10 given to the complainant to collect the same. Whereas the case of the complainant that he visited Op No. 3 several times but they failed to deliver the Laptop. In case Laptop was not handed over to the complainant after its rectification then complainant was forced to file this complaint for which he is entitled to compensation and litigation cost.
13. No other point was argued.
14. In view of the above, we partly accept the appeal. Impugned order with regard to replacement of the Laptop with new one is set-aside. However, direction is given to Op No. 3 to deliver the Laptop to the complainant in a complete working condition within a period of 30 days after the receipt of the order passed by this Commission. After rectification, it will have further warranty of six months. In case any defect again occurred in the Laptop within that period then Op No. 3 will be liable to rectify the same free of cost. There will be no change in the order of the District Forum with regard to payment of compensation and litigation expenses.
15. The appellant had deposited an amount of Rs. 25,000/- with this Commission in the appeal. Out of this amount, Rs. 3,000/- be remitted to respondent No. 1/complainant and the remaining amount, with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court after verification that Laptop in perfect working condition was delivered to the complainant. First Appeal No. 879 of 2014 11
16. The arguments in this appeal were heard on 3.5.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 6, 2016. (Harcharan Singh Guram)
as Member