28th day of December 2015
C.C.368/11 filed on 19/8/11
Complainant : Dr.C.A.Santha Kumar.K., BSc.,FCA,DISA,
,Phd.,Chartered Accountant, XXV/678,
Sreesailam, MG Road, Thrissur.
(By Adv.Jecko Joy, Thrissur)
Opposite Parties : 1. Manager, Cyberssoftinfosys, Dell India Pvt.
Ltd., Thrissur Office, Poonkunna, Thrissur.
2. Inside Sales Account Manager, Dell India
Pvt.Ltd., Registered Office, Divyasree
Greens, Ground floor, 12/1,12/2A,13/1A,
Challaghatta Village, Varthur Hobli,
Bangalora South, Karnataka.
3. Managing Director/Person in charge, Dell
India Pvt.Ltd., Registered Office, Divyasree
Greens, Ground floor, 12/1,12/2A,13/1A,
Challaghatta Village, Varthur Hobli,
Bangalora South, Karnataka.
4. Dell India Pvt.Ltd., Registered Office,
Divyasree Greens, Ground floor,
12/1,12/2A,13/1A, Challaghatta Village,
Varthur Hobli, Bangalora South, Karnataka,
rep. through Managing Director.
(By Adv.Joy Davis, Thrissur)
O R D E R
By Sri.P.K,.Sasi, President
The complainant is a Chartered Accountant who is practicing as tax practitioner, offices at Thrissur and Ernakulam. He is also used to give lectures in some specialized subjects in India and also abroad. The case of the complainant is that being attracted with the advertisement given by the 4th opposite party, who is the manufacturer of personal computers, laptops, notebooks etc., the complainant placed an order for customized Vostro 1320 notebook through their site and quotation also given on 7/7/10. The opposite parties promised the complainant that the product will be delivered within 10 days of confirming the order and depositing the amount. Believing that, the complainant has deposited an amount of Rs.45,419/- on 9/7/10 and as per their request the UTR number was communicated to 1st opposite party. After that several corresponding taken place between the complainant and 4th opposite party by email messages. Whereas, the opposite party did not deliver the notebook booked by the complainant within the promised time. On repeated enquiries the 4th opposite party informed the complainant that they have stopped the production of the model of notebook booked by the complainant and asked him to book for their latest model Vostro 3400 and he also deposited additional amount of Rs.471/- to the 4th opposite party on 14/8/10. The opposite party had collected the amount from the complainant for a product that never existed, which the opposite party is very well knew that they will not be able to supply, itself amounts to an act of deficiency in service as well as unfair trade practice. The opposite party caused inordinate delay in delivering the product as promised by them that to deliver within 10 days from booking, which caused undue stress, anxiety and mental agony to the complainant. The first 3 opposite parties are the persons who are responsible to delivering the product. At last the opposite parties delivered the product only on 5/10/10 i.e. nearly after three months from confirming the booking. Hence this complaint is filed for getting compensation from the opposite parties.
2. On receiving notice, the first 3 opposite parties neither appeared before the Forum nor filed any version. Hence set exparte. Only the 4th opposite party appeared through counsel and filed detailed version. 4th opposite party filed version for and on behalf of opposite parties 2 to 4. Their first contention is that the complainant has not come before the Forum with clean hands and prayed for dismissal of the complaint. The opposite parties admitted the request received from the complainant and confirmation of the order by depositing the amount. According to the opposite parties the delivery of the lap top is subject to the availability of the parts/components. It was made clear at the time of order by the opposite party to the complainant and he was also aware of that. The estimate delivery of the date is depends upon the estimated time needed for manufacturing the unit which can taken anywhere between 15 to 30 days. The opposite party categorically denied that they have provided an estimated delivery time of 10 days to the complainant. They further stated that they are desirous of upgrading its products makes constant improvements in its technology and products. In its endeavor to produce and sell better quality products, 4th opposite party regularly phases out the old models and introduces improvised and technically advanced version of laptops. In the present case, however the complainant placed an order, for model Dell Vostro 1320 and opposite party had launched upgraded version of the said laptop namely Dell Vostro 3400. According to the 4th opposite party by the time of receiving payment from the complainant that particular model had reached its end-of-life (EOL) period. The change in the model and the impossible situation of the opposite party to deliver the booked model was intimated to the complainant on 26/7/10. The opposite party further stated that on confirmation of the order from the complainant the opposite party has dispatched the product within time and delivered to the complainant on 5/10/07. The delay caused was only due to the time taken by the complainant in confirming the order. The opposite party further stated that they have not committed any unfair trade practice or deficiency in service towards the complainant and prayed for the dismissal of the complaint with cost.
3. Then the case was posted for evidence and the points for consideration are that:
1) Whether there was any deficiency in service committed by the opposite parties ?
2) If so what costs and reliefs ?
4. From both sides neither any proof affidavits nor any oral evidence adduced. From the side of complainant four documents produced and marked as Exts.P1 to P4. Ext.P1 is copy of email confirming payment dated 16/7/10, Ext.P2 is copy of email sent by the opposite parties dated 26/7/10 and 28/7/10, Ext.P3 is copy of lawyer notice dated 27/10/10 and Ext.P4 is postal receipts.
5. From the side of opposite parties only one document produced and marked as Ext.R1 i.e. quotation received from the complainant dated 21/6/10.
6. The case of the complainant is that he has booked a notepad manufactured by the 4th opposite party through the opposite parties No.1 to 3. He had paid the amount and confirmed the order also. He was promised by the opposite parties that the product will be delivered within 10 days from confirming the booking. But the opposite parties delivered the product only after 3 ½ months, which caused severe mental agony and hardship to the complainant. Whereas the opposite party has admitted that they have received the order confirmed by the complainant, but the delay caused only due to the delay made by the complainant in confirming the order. It is also admitted by the opposite party that they could not deliver the model, booked by the complainant. They says that, that particular model reached its end of life period. Hence they provide its advanced version to the complainant. To get a confirmation regarding the delivery of latest version, the complainant made unnecessary delay and that caused delay to the delivery of the product to the complainant.
7. Here the crucial question to be answered is that whether there was any promise given by the opposite party regarding the delivery of the product within 10 days from the date of confirmation. The burden is upon the complainant to prove his case that there was such a promise given by the opposite party. Here the complainant neither appeared before the Forum nor filed any proof affidavit by supporting his claim. It has not seen anywhere in the Ext.P1 to P4 documents, that the opposite party has promised to deliver the product within the alleged time of 10 days. It is true that the opposite party could not provide a product, for which they collect entire payment from the complainant in advance. It has to be considered that, the opposite party was well aware that even at the time of accepting the cost of that product from the complainant, they can not provide such product. Suppressing that fact they submitted that particular model booked by the complainant reached its end of life, therefore they could not provide that model. In this era of advanced technologies such a contention taken by the opposite party cannot be accepted as such. We are of the opinion that it is only a tactics played by the opposite party to capture a customer by publishing enticing advertisements. That can only be considered as an unfair trade practice happened on the part of the 4th opposite party.
8. Regarding the other allegations raised by the complainant that he has sustained severe mental agony etc. is not proved before us by the complainant with cogent proof. Therefore we are of the opinion that the complainant could not prove that the opposite party has committed any deficiency in service towards him.
9.Considering the points discussed hereinabove, we are of the opinion that the 4th opposite party who is the manufacturer of the product booked by the complainant has committed unfair trade practice towards the complainant.
10. In the result, we allow this complaint in part and the 4th opposite party is directed to pay Rs.20,000/- (Rupees Twenty thousand only) as compensation for unfair trade practice committed by them to the complainant within one month from receiving copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 28th day of December 2015.
Sd/- Sd/- Sd/-
M.P.Chandrakumar Sheena.V.V. P.K.Sasi, Member Member President.
Appendix
Complainant’s Exhibits
Ext.P1 copy of email dated 16/7/10
Ext.P2 copy of email sent by the opposite parties dated 26/7/10& 28/7/10 Ext.P3 copy of lawyer notice dated 27/10/10
Ext.P4 is postal receipts.
Opposite Parties Exhibits
Ext.R1 Quotation received from the complainant dated 21/6/10.
Id/-
President
