BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 65/2009 Filed on 19.03.2009

Dated : 27.02.2010

Complainant:

Binu. K.S, Eminence, 'Sreepadmam', Ganapathikovil Road, Vazhuthacaud, Thiruvananthapuram.

(By adv. R. Narayan)

Opposite party:

Friends Systems, T.C 27/2253(2), Near Leena Bakery represented by Proprietor Mr. Shiby, Statue Road, Thiruvananthapuram.

(By adv. Sajan Prasad)

This O.P having been heard on 07.01.2010, the Forum on 27.02.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant in this case is running an institution by name “Eminence” for his livelihood. In February 2009 he purchased a computer system from the opposite party for an amount of Rs. 20,500/- the bill No. is 1137. The opposite party themselves assembled the system and assured that it will work fine without any problem. But within one week of purchase the system started developing trouble. UPS became defective and the same had to be replaced twice. On 17.03.2009 the monitor became faulty and could not be used. Though the monitor complaint was rectified, the same complaint started again. The opposite party himself informed the complainant that the problems have been created due to the pirated software. The software was installed in the system by the opposite party himself. Then only the complainant understood that he was cheated by the opposite party. So the complainant asked the opposite party either to replace the system with a branded one with genuine software or to return the amount paid by him. The opposite party informed that they will only replace defective goods and nothing else. The system has become totally defunct and it is not possible to do any work with the same. Hence the complainant is praying for an order to replace the defective computer system with a branded defect free one or in the alternative to refund the price together with compensation.

The opposite party in this case Friends system accepted notice of this case and entered appearance and filed version and thereafter there was no representation from their side. In their version they contended that the complainant is not conducting any institution in connection with insurance and it is not his livelihood and hence the complainant will not come within the purview of “complainant” under the Consumer Protection Act. The complainant has purchased the system from the opposite party, but the operating system as well as software was installed by somebody else and not by the opposite party. When the system got complaint immediately the opposite party went and checked the system and it is revealed that pirated softwares were installed and at that time the opposite party specifically instructed the complainant to instal the original softwares. The complainant has also internet connection and since the software was pirated the opposite party also informed to instal anti virus. Even though these matters were specifically informed the complainant has not cared to instal the same and thereby the system got damaged. The opposite party is not at all liable and responsible for the problems caused to the system and it is due to the complainant's own fault. The opposite party further stated that the complainant came to the opposite party's office and used abusive language towards the opposite party in the presence of his customers and due to the negligent act of the complainant himself the defect occurred and due to the same the opposite party is put to untold hardship and misery. Hence they prayed for dismissal of the complaint.

The complainant in this case filed proof affidavit and examined him as PW1 and through him Ext. P1 and Ext. C1 were marked. Ext. C1 is the commission report filed by Mr. Manoj P.S, Lecturer in Computer Engineering, Central Polytechnic, Thiruvananthapuram. The affidavit filed by the complainant stands unchallenged since nobody has cross examined him. And the report filed by the commission also stands unchallenged since nobody has raised any objection to the report.

Points that would arise for consideration are:-

1. Whether there has been any deficiency in service or unfair trade practice occurred from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The allegation of the complainant is that the opposite party sold a defective computer system with pirated software to the complainant. To prove his contentions the complainant has filed proof affidavit and produced the purchase bill. As per the application of the complainant this Forum appointed Mr. Manoj as the expert commissioner to ascertain the defects of the computer system. In the presence of the complainant and opposite party, the commissioner inspected the computer in dispute on 07.09.2009 and filed a report before us. The report is marked as Ext. C1. In his report the commissioner reported that the main cause of failure of the computer system is due to the malfunctioning of the software, especially, the operating system loaded. The software loaded are all pirated. No genuine licensed software are installed in the system. The opposite party has admitted that no operating system, which is an integral part of a computer system, was given. He also reported that since it is unable to load the operative system itself and the computer system is not in a working condition, the internet connectivity could not be accessed from the system. The observations of the commissioner are:- the opposite party might have loaded a copy of pirated operating system and other supporting softwares from his office itself, it is impossible for the complainant to load an operating system because there is no CD/DVD drive in the system. He has made an observation that it is unbelievable to say that the complainant has loaded the operating system and other supporting software since the opposite party has not supplied the operating system at the time of supply as admitted by him and the system was demonstrated at the time of delivery for successful functioning of the computer system as well as the internet connectivity which is possible only with an operating system of Graphics User Interface capability, either original or pirated already loaded in the system which cannot be done by standards by the complainant. From this report itself we conclude that there is unfair trade practice and deficiency in service from the side of opposite party. It is the duty of the opposite party to assemble standard quality and well functioning components in a computer. It is not a fair practice but profit motive only. It is the duty of the dealer to provide good service to the customers after sale. As per Ext. P1 bill the complainant had paid Rs. 20,500/- as the price of the computer system. He purchased the computer system on 09.02.2009. He filed this complaint before this Forum on 19.03.2009 i.e, within two months. He purchased the computer system from the opposite party by paying huge amount for the purpose of earning his livelihood. But he could not use the same even for a week. Due to the negligent and deficient act of the opposite party the complainant suffered a lot of hardships and loss, hence the opposite party is liable to pay compensation to the complainant for his mental agony and financial loss. Hence the complaint is allowed.

In the result, the opposite party is directed to refund Rs. 20,500/- to the complainant, the price of the computer system. The opposite party shall also pay Rs. 5,000/- as compensation and Rs. 3,500/- as costs of the proceedings. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid to the entire amount till the date of realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 27^th day of February 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 65/2009

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Binu K.S

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of cash credit/service bill No. 1137 dated

09.02.2009

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

C1 - Commission Report

PRESIDENT