DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.332/2014

Sh. Abhishek Bansal

4025, Sector-B, Pkt.- 5 & 6,

Vasant Kunj, New Delhi

….Complainant

Versus

Acer India (Pvt.) Ltd.

No.17, 2^nd Floor, Kailash Enclave,

Near Kailash Colony Metro Station,

New Delhi- 110048

Microsoft Corporatin (I) Pvt. Ltd.

10^th Floor, Tower B & C, DLF Building NO.5 (Epitome),

Cyber City, DLF Phase III, Gurgaon- 122002

        ….Opposite Parties

 Date of Institution    :     26.08.2014   

 Date of Order            :    29.11.2022  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

1. The complainant has filed the present complaint seeking 10 Lakhs from the OPs.  OP-1 is Acer India Pvt. Ltd. and OP-2 being Microsoft Corporation (I) Pvt. Ltd.
2. It is stated by the complainant that he has purchased Acer Aspire C-I-510 of 2406014 with pre-installed genuine Microsoft Windows 8.1 having Serial No. NXMGRS100641703CD83400 on 24.06.2014.
3. It is stated by the complainant that Apps/programmes are not working, sound icon mark does not open but sound is coming. He is not able to change computer name or advance system setting or any setting, however, Windows remain activated.  He is not able to open system administrative tools neither task manager.  CD/DVD drives cannot be read and if read cannot be installed, it takes a lot of time to save documents.  MS hangs when four to five Windows are open.  Software’s licence is not working properly, Windows get disabled, printers cannot be added etc.
4. It is stated by him that he called customer care and was given some steps to be followed which did not help and he had to visit the service centre.  Since then he has been regularly visited the service centre multiple times.
5. When he approached OP-2 online chat, he was told to re-instal and run the software but when the complainant told him that it has already been re-installed then it was told to him that the problem is with hardware and not with software.
6. It is stated by him that repeatedly installation is being done on his laptop which is done 24 times.  But even then the laptop is not working properly.
7. It is stated that despite having onsite warranty OP-1 i.e. Acer India Pvt. Ltd. has repeatedly asked him to visit service centre, they are neither refunding his money nor replacing the laptop and is wasting the complainant’s time.
8. It is stated by the complainant that OP-2 has provided Microsoft WIN 8.1 OS which is installed in his laptop which is not working properly though OP-2 has stated that problem is not in the software but hardware.  
9. It is further stated by him that OP-1 states that problem is not in hardware and it is that the Microsoft updates are not happening which is a feature chain key on genuine products.
10.   It is further stated that OP-1 has told him to try WINDOWS 7.1 but they are not clear whether the installation of Windows 7.1 would help or not.  It is stated by him that he had purchased this particular model as it came with pre-installed genuine software then there is no reason for him to instal Windows 7.1.
11.   It is stated that if Windows 8.1 is working in all other laptop then why would it be a problem in his laptop.  It seems the laptop is defective piece.
12.   It is stated by the complainant that OP-2 has limited the choices closing all earlier versions of software permanently.
13.   It is stated by the complainant that such a partially working laptop does not help him in any way and that he had requested for a refund to which they do not agree.
14.   It is stated by the complainant that both the OPs are not helping to resolve the laptop problem; software on the laptop is not working properly.
15.   On the other hand, OP-1 has stated that the complaint is frivolous, baseless, abuse of process of law, without any cause of action and that the complainant has not approached the Commission with clean hands.
16.   It is stated by OP that there is no deficiency or unfair trade practices on their part and it is stated by them that as far as list of problems are concerned most of them relate to software problem and it is not related to OP-1.
17.   On merits, it is stated that the complainant has exaggerated the sequence to events and also the reliefs he is seeking i.e. Rs.10,00,000/-which establish the real ulterior motives behind filing of the complaint i.e. to extort money from OP-1.
18.   OP-1 denies that the laptop was defective piece and it is stated that the complainant has neither substantiated nor submitted any proof showing that the laptop was defective.  It is also stated that the product purchased by the complainant was having a warranty period of one year and as per their records it has been brought to the service centre by the complainant thrice.  It is further stated that the complainant was adamant and unduly demanding to replacing laptop.
19.   It is stated by OP-1 that they should not be held responsible in any operating system not working properly, it is further stated that with a view that the laptop was not in working condition, it is not explained by the complainant how he was he able to use the laptop for submission of his work.
20.   It is also stated by the OP-1 that the complainant is a freelancer and is using his laptop for commercial purposes therefore, he is not a consumer.  It is stated by the OP-1 that all the complaints were attended to and resolved by them and that complainant himself has admitted that he could use the laptop for its very normal use, therefore it cannot be defective.
21.   It is stated by the OP that the complainant should be liable for installing any other software and thereby causing harm to the laptop.  It is stated that the problems are emanating from the laptop from installing incompatible software.
22.   OP-2 in their reply, have taken a preliminary objection that the complainant is not a consumer and he is using his laptop as he is a freelancer for earning his livelihood.
23.   It is stated that since Acer laptop comes with a pre-installed 8.1 WINDOWS, it is automatically installed by the Microsoft software licence Agreement between OP-1 and 2.  The Licence Agreement is annexed as Annexure R2/1.
24.   It is stated that the complainant to be liable for support and issues, if any, with the pre-installed Windows 8.1 laptops.
25.   It is stated by them that there is no privity of contract between the complainant and OP-2 and states that in case there is any problem in the Windows installation it is the liability of OP-1 to replace or resolve the same.
26.   It is stated by OP-2 that if certain files are missing from the installed version of Microsoft Windows, it would render the installed copy unstable.
27.   It is stated that installing incompatible software/applications like UBUNTU OS will not help as it is LINUX based operating system which is not supported by Microsoft Windows.
28.   It is stated that certain applications software which are meant to be used with Windows are not compatible with Windows 8 or 8.1 and their support ended in 2014.
29.   It is also stated that repeated installation and disabling reflects that it is a software issue since there are other hardware issues USB/Printers/Media devices are also creating problems.
30.   It is stated by the OP-2 that the only advisable solution in this case would be to re-instal the operating system and up date anti-virus software before connecting the computer back to network so as to prevent infection in case of malware however, there is no way to establish this since the complainant has never offered his laptop to OP-2 for physically verification.
31.   It is stated that OP-2 does not guarantee out of box compatible with every single Windows application designed for previous versions of Windows.
32.   The complainant has filed his rejoinder and denied the allegations of the OPs made in their respective replies and the complainant has asserted that he is knowledgeable in regard to laptops. All the parties have filed their respective evidences as well as written arguments.
33.   This Commission has gone through the entire material on record, the contention of the OPs that the complainant is not a consumer cannot be upheld as it has been admitted by the OPs that he was using the subject laptop for earning his livelihood and therefore, falls within the definition of consumer.
34.   It is observed from the reply of OP 1 that the complainant has visited their service centre thrice on 26.06.2014, 03.07.2014 and 04.08.2014, all within the period of warranty. In fact, it is seen that the complainant had to visit the service centre on the third day of the purchase. It is also seen that the nature of the complaints pertain to “System can’t boot; Can’t power on system”. The contention of the
    OP-1 that the problems relate to operating system and is not responsible for it, is not sustainable.  The subject laptop came with pre-loaded Windows 8.1 and if the said Windows is not working properly on the subject laptop then OP 1 is responsible.
35.   It is also seen that the complainant, in his rejoinder has clarified in his complaint that he did not download any incompatible software. In any case, since the installation of the system was carried out on the subject laptop, many times, any other incompatible software would have been removed.
36.   Accordingly, this Commission is of the opinion that OP1 has been deficient in its services in providing a system which started to give problems immediately after purchase.
37.   We agree with the contention of the OP2 in view of the agreement placed on record by them that the matter is primarily between OP1 and the complainant.
38.   The complaint is partially allowed. This Commission directs
    OP-1 to refund Rs.22,000/- to the complainant. The complainant is directed to return the laptop to OP 1 on the payment of this amount at place fixed by both the complainant and OP-1. This amount is payable within a period of three months from the date of this order failing which this amount shall be payable with interest @5 % p.a. No order as to costs.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.