State Consumer Disputes Redressal Commission
Toshiba India Pvt. Ltd. vs Yogesh Kumar & Others on 1 August, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 17 / 2014
Toshiba India Pvt. Ltd.
A company incorporated under the Companies Act, 1956
having its Corporate Office at
3rd Floor, Building No. 10, Tower B
DLF Cyber City, Gurgaon - 122002
through Sh. Sivakumar N
...... Appellant / Opposite Party No. 3
Versus
1. Sh. Yogesh Kumar S/o Sh. Suresh Kumar
R/o Village Jagjeetpur, Near Peeth Bazar
Kankhal, Tehsil and District Haridwar
...... Respondent No. 1 / Complainant
2. Sh. Vikas Chaudhary
Proprietor, Microvision Computers
In front of Avdhoot Mandal Market Shop
Jwalapur, Tehsil and District Haridwar
3. Redington India Limited
Authorized Service Centre
10, Ground Floor, Tilak Complex
Tilak Road, Dehradun
...... Respondent Nos. 2 and 3 / Opposite Party Nos. 1 and 2
Sh. M.K. Kohli, Learned Counsel for the Appellant
None for Respondents
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Dated: 01/08/2018
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 18.12.2013 passed by the District Forum, Haridwar in consumer complaint No. 240 of 2011.2
2. Briefly stated the facts giving rise to the appeal are that on 31.07.2010, the complainant had purchased a Toshiba Laptop Satellite L500 bearing Sl. No. 2A047395Q from opposite party No. 1 - Microvision Computers for sum of Rs. 39,250/-. At the time of sale of the laptop, the seller had given the warranty of one year on the said laptop. The complainant was also assured that in case any manufacturing defects in the laptop, the manufacturing company will replace the same with a new one. After purchase of the laptop, defects started occurring therein and Dots started displaying on the screen of the laptop. The complainant immediately approached the opposite party No. 1 and requested for removal of defects from the laptop. On the asking of opposite party, the laptop was handed over to him, who in turn, sent the laptop to opposite party No. 2, the authorized centre of the manufacturing company. After few days, the laptop was made available / handed over to the complainant after repairs, but the problem of Dots being displayed on the screen on the laptop was still persisting. The opposite party No. 2 told the complainant that the screen of the laptop has been replaced and this type of problem occurs on the new screen and the same would get subside by passage of time. However, the Dots appearing on the display screen of the laptop went on getting deep. On 10.06.2011, the complainant handed over the laptop to opposite party No. 1 for replacement of the same by the manufacturing company, who in turn, submitted the laptop with the opposite party No. 2 on 14.06.2011. The complainant made several visits to the service centre of the company for taking the delivery of his laptop, but the complainant was neither delivered the new laptop, nor the laptop in question was returned to him after necessary repairs. The defect in the laptop is a manufacturing defect, which is not curable. Thus, alleging deficiency in service and unfair trade practice on the part of the opposite parties, 3 the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The appellant - opposite party No. 3 filed written statement before the District Forum and pleaded that in para 4 of the consumer complaint, the complainant has stated that the laptop was being actively used by him for enhancement of his business activities; that the complainant has failed to prove by way of any cogent and expert opinion that there is any manufacturing defect in the laptop; that for the first time, the complainant made a complaint on 28.09.2010 with regard to some lines appearing on the TFT display and the complaint was logged with opposite party No. 2; that the TFT display was replaced with a brand new display unit; that the complainant again made a complaint with the opposite party No. 2 on 14.06.2011; that on the said occasion, the complainant did not report any defect in the laptop, rather he claimed that there were some Dots appearing on the display screen and the complainant was duly informed that the same is an inherent feature of the display itself and is not a defect at all; that the said information and disclaimer already stands issued and communicated to the complainant vide International Limited Warranty; that it was quite normal that some Dots may appear in every TFT display of the laptop manufacturing by opposite party No. 3; that the complainant has left the laptop with the opposite party No. 2 and inspite of repeated reminder issued by the opposite party No. 2, failed to collect the laptop till date; that the TFT laptop in question contains certain Dots, which is normal and can not be termed to be defect of any kind; that the complainant is not covered under the definition of "consumer" and that there is no deficiency in service on their part.
44. The respondent No. 2 - opposite party No. 1 filed written statement before the District Forum and pleaded that he is not a service provider of the laptop; that the warranty period of the laptop was upto 30.07.2011; that the company does not give any warranty / guarantee on the physical damage of the product and that there is no deficiency in service on his part.
5. The respondent No. 3 - opposite party No. 2 filed written statement before the District Forum and pleaded that the scope of its operations is to perform repair services as defined by the manufacturer without receiving any consideration from the customer; that the complainant approached the service centre of opposite party No. 2 for the first time on 05.10.2010 complaining of appearance of vertical lines in the LCD screen of the laptop; that the service engineer of opposite party No. 2 diagnosed the laptop and identified that the LCD screen of the laptop had developed some problem; that considering that the laptop was under warranty period, the service centre had escalated the issue to the manufacturer and sought approval for replacement of the LCD screen; that upon receipt of confirmation from the manufacturer, the LCD screen of the laptop was replaced and the complainant had taken the delivery of the laptop on 30.11.2010 after being satisfied with the performance of the laptop; that as per the ISO 13406 statement, the laptop is eligible for replacement only if a laptop has such prescribed number of black spots as laid down in the ISO statement; that the complainant's laptop was not fulfilling the ISO standards, as the number of black spots appearing in his laptop was not meeting the ISO standard prescribed for replacement of laptop and there was only one single spot in the complainant's laptop; that on account of the above reason, the manufacturer had refused to replace the laptop and the opposite party No. 2 had immediately appraised this fact to the complainant and requested him to take the 5 delivery of the laptop, but he did not bother to collect the laptop and that the black spots (Defective Pixel) appearing in the laptop can not be said to be deficiency in service attributable to opposite party No. 2.
6. The District Forum, after perusal of the record, allowed the consumer complaint vide impugned order dated 18.12.2013 and directed the respondent No. 2 - opposite party No. 1 to supply new laptop to respondent No. 1 - complainant in place of laptop in question within a period of one month from the date of the order or in the alternative, to refund the price of the laptop amounting to Rs. 39,250/- to respondent No. 1 - complainant and also pay Rs. 750/- towards compensation. The District Forum has also directed the appellant - opposite party No. 3 to deposit sum of Rs. 5,00,000/- with the District Forum towards damages within a period of one month from the date of the order. Aggrieved by the impugned order, the appellant has filed the present appeal before this Commission.
7. None appeared on behalf of respondents inspite of sufficient service. We have heard the learned counsel for the appellant and gone through the record.
8. The present appeal has been filed before this Commission by Toshiba India Pvt. Ltd., who was opposite party No. 3 before the District Forum and on whom the District Forum has levied damages of Rs. 5,00,000/- and directed it to deposit the same with the District Forum. However, the respondent No. 2 - opposite party No. 1, to whom the District Forum has directed to replace the laptop or to refund the price thereof, has not preferred any appeal against the impugned order, but since both the directions arise out of the same impugned order and hence we have to examine the legality and propriety of the impugned order passed by the District Forum in order 6 to find out whether there is any manufacturing defect in the laptop or not.
9. The complainant has alleged that there is an inherent manufacturing defect in the laptop in question, which is not curable and by selling a defective laptop to the complainant, the opposite parties have committed gross deficiency in service and have also resorted to unfair trade practice.
10. The perusal of the consumer complaint shows that the complainant has alleged that after the purchase of the laptop, Dots started appearing on the display screen of the laptop. No other defect in the laptop has been alleged by the complainant. It has specifically been pleaded by the appellant in the written statement filed before the District Forum that it was quite normal that some Dots may appear in every TFT display of the laptop manufacturing by the appellant - company and the same can not be termed to be a manufacturing defect in the product. It is pertinent to mention here that the authorized service centre of the manufacturing company has specifically come up with the stand that as per the ISO 13406 statement, the laptop is eligible for replacement only if a laptop has such prescribed number of black spots as laid down in the ISO statement and since the complainant's laptop did not fulfill the ISO standards, as the number of black spots appearing in his laptop was not meeting the ISO standard prescribed for replacement of laptop and there was only one single spot in the complainant's laptop and hence there was no question of replacement of the laptop with a new one.
11. It is a settled law that the onus to prove manufacturing defect in the product lies on the complainant and the complainant has to discharge the said burden by adducing cogent and reliable evidence in 7 that regard. In the present case, the complainant has not filed any expert evidence / opinion to show that there is an inherent manufacturing defect in the laptop and the said defect is not curable. Merely because the laptop was taken to the authorized service centre of the manufacturing company on 2-3 occasions, is no ground to presume / hold that there is manufacturing defect in the laptop. The authorized service centre has also pleaded that they have asked the complainant to collect the laptop, but he did not turn up. There is a letter dated 17.08.2011 of respondent No. 3 - service centre addressed to the complainant (Paper No. 42), wherein it was clearly mentioned that the problem pointed out in the laptop is not covered under warranty as per the policy of the company and the complainant was requested to pick-up the laptop from Dehradun service centre. The District Forum has passed the impugned order on the basis of surmises and conjectures, without taking into consideration the material on record.
12. It would not be out of place to mention here that in para 4 of the consumer complaint, the complainant has stated that he had purchased the laptop for enhancing his business activities. This means that the laptop was used by the complainant for commercial purpose / activity, which factor ousts the complainant from the definition of "consumer", as provided under Section 2(1)(d) of the Consumer Protection Act, 1986.
13. So far as the direction by the District Forum to the appellant to deposit sum of Rs. 5,00,000/- towards damages is concerned, the Hon'ble Supreme Court in the case of General Motors (India) Private Limited Vs. Ashok Ramnik Lal Tolat and another; AIR 2015 Supreme Court 562, has held that the causing of loss has to be established and the award of punitive damages against the 8 manufacturer / dealer was set aside. The Hon'ble National Commission in the case of Amit Swami Vs. Coca Cola India Ltd. and others; II (2007) CPJ 256 (NC), has held that the reliefs granted by Consumer Fora are enumerated in Section 14 of the Consumer Protection Act, 1986 and the Consumer Fora can not pass any order for levy of penalty being credited in Consumer Welfare Fund. In view of above law, the direction to the appellant for depositing sum of Rs. 5,00,000/- with the District Forum, need to be set aside. Even otherwise, since we have come to the conclusion that there was no manufacturing defect in the laptop and the District Forum was not justified in directing for replacement of the laptop or refund of the price thereof and hence the above direction can not also be legally sustained.
14. The District Forum has not properly considered the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. Consequently, the appeal deserves to be allowed.
15. Appeal is allowed. Order impugned dated 18.12.2013 passed by the District Forum is set aside and consumer complaint No. 240 of 2011 is dismissed. The statutory amount of Rs. 25,000/- deposited by the appellant at the time of filing the appeal, be released in its favour. No order as to costs.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA) K