State Consumer Disputes Redressal Commission
Manager M/S Ashutosh Goyal vs Sh. Ashok Bhatt on 1 May, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND,
DEHRADUN
FIRST APPEAL NO. 104 / 2011
Manager M/s Ashutosh Goyal
Front Line Office Automation Private Limited
27, Tilak Road, Dehradun
.......Appellant / Opposite Party No. 1
Versus
1. Sh. Ashok Bhatt S/o Sh. S.S. Bhatt
R/o Tarla Adhohiwala, Diya Vihar, Raipur Road
Near Chunna Bhatta, Dehradun
.......Respondent No. 1 / Complainant
2. Unitech Crest Block
C Green Wood City, Sector 45, Gurgaon
.......Respondent No. 2 / Opposite Party No. 2
Sh. Deepak Ahluwali, Learned Counsel for the Appellant
None for Respondent Nos. 1 & 2
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Dated: 01/05/2019
ORDER
(Per: Mr. Balveer Prasad, Judicial Member):
The appeal has been preferred under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.04.2011 passed by the District Consumer Disputes Redressal Forum, Dehradun (herein-after to be referred as 'The District Forum') in consumer- complaint No. 99 of 2008: Ashok Bhatt vs. Manager, M/s Ashutosh Goyal & another, whereby the replacement of the computer set, was ordered, failing which the opposite parties were directed to pay the cost amounting to Rs. 30,000/- alongwith Rs.1,000/- as damages for 2 mental agony provided that the used set is returned to the O.P.'s by the complainant.
2. The facts relevant for the disposal of the appeal are that the complainant purchased one computer set of Lenovo Company on 16.07.2007 for Rs.30,000/- and soon thereafter, the computer was out of order. O.P.'s were contacted, but they did not help the complainant. The set was well within the period of warranty. Alleging deficiency on the part of O.P.'s, complaint was instituted before the District Forum.
3. By way of written statement, the opposite party No. 1 submitted that the answering opposite party is the Sales Agent of Lenovo Company. The service centre of the company is situated in Mazra, Dehradun. The Lenovo Company's customer care toll free No. is 1800113324 and any complaint is to be registered with the company & it is liability of the company to attend the problems of the consumers. The complainant purchased the computer from opposite party No. 1, no software was installed in the computer by opposite party No. 1. Only the hardware was sold. The complainant had installed pirated software in the machine, without any licensed Anti- Virus Software, resulting in manufacturing of the softwares in the computer. The complainant has deliberately not made Lenovo Company as party to the complaint & hence, it is bad for non-joinder of necessary party.
4. The District Forum, on appreciation of the material on record allowed the consumer complaint, in the terms mentioned in the order impugned. Feeling aggrieved, the appeal has been set in motion.
35. Learned counsel for the appellant appeared & argued the matter at length. Nobody responded to represent the respondent No. 1 / complainant. A note of caution was recorded on the order-sheet, dated 23.04.2019 to the effect that in case the respondents do not turn up on the next date fixed, the appeal would be heard in the absence of respondents.
6. It was argued on behalf of the appellant that the complainant failed to furnish expert evidence in support of alleged manufacturing defect. Also urged that the case is bad for non-joinder of necessary party. It was further stated that the complainant cannot take advantage on his own wrong, for installing pirated software. Reliance was placed on citation : Km. Namarata Singh vs. Manager, Indus; 2012(3) CPR 570 (NC), whereby Hon'ble N.C.D.R.C., New Delhi postulated as under:-
"For proving fact of manufacturing defect, expert opinion is necessary."
Also relied on Tata Motors vs. Deepak; 2015 (1) CPR 408 (NC), wherein it was laid down that - 'Merely because the vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in absence of Expert evidence.'
7. We have examined the entire material on record and given a thoughtful consideration to the arguments placed before us.
8. Perusal of the record reveals that the complainant filed no replication, in order to rebut the defence pleas raised in the written statement. Sh. Ashok Bhatt, the complainant furnished affidavit (bearing No. 17Ka : Forum's file) narrating all what is worded in the complaint. Sh. Ashutosh Goyal filed affidavit (paper No. 25Ka :
Forum's file) stating the pleas raised in the written statement & thus, 4 supported the defence version. The complainant did not furnish rejoinder affidavit, in order to rebut the factum worded in the affidavit moved on behalf of the appellant.
9. No expert evidence has been filed by the complainant, nor the manufacturer company was arrayed as a party to the case. The fact as to installing pirated software by the complainant, also cuts the root of the case. The rulings referred as above, are fully applicable to the present set of facts. Thus, the complainant is not entitled to the replacement of the computer or refund of its cost - price.
10. We are of the considered view that the order impugned is not sustainable in law & hence, it is set aside. Consequently, the consumer - complaint is dismissed.
11. Accordingly, the appeal is allowed. No order as to costs.
12. Statutory amount deposited at the time of filing the appeal, be released in favour of the appellant.
(BALVEER PRASAD) (JUSTICE B.S. VERMA)