STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Acer India Pvt. Ltd., through its authorized signatory, C/o Chandigarh Business Centre, SCO No. 2441-42, 2^nd  Floor, Sector-22-C, Chandigarh.

2. Digital Solutions through its authorized signatory SCO No. 357, 2^nd  Floor, Sector-44-D, Chandigarh.

3. M/s Acer India Pvt. Ltd., through its authorized signatory, Embassy Heights, 6^th  Floor, No.13, Magrath Road, Next to Hosmat Hospital, Bangalore – 560025.

Through Mr.Rajesh Office at SCO No.2441, Sector-22-C, Chandigarh.

…..Appellants

V E R S U S

Monica Singh aged 26 years, daughter of Shri Inder Singh, resident of H.No.21, Sector-21-A, (UT) Chandigarh.

….Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh.M.S. Saini, Advocate for the appellants.

               Sh.Devinder Lubana, Advocate of the respondent.

PER JUSTICE SHAM SUNDER, PRESIDENT

1.              This appeal is directed against the order dated 24.12.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted  the complaint and directed the OPs(now appellants) as under:-

“(i)   To refund the cost of ACER Computer       Notebook, Aspire 4530, amounting to Rs.30,000/-, as the Notebook earlier supplied    by the OPs has remained defective and non-       functional and could not be put to an       effective use by the Complainant even for a day. The complaint shall return the defective Computer Notebook to the OPs.

(ii)   To pay compensation of Rs.10,000/- for    causing physical harassment, mental agony   and pain to the Complainant, on account of     supply of a defective and non-functional        Computer Notebook to her even after       charging the full cost of the new and fully     functional Computer Notebook.

(iii)  To pay a sum of Rs.7000/- as litigation costs.

                     The aforesaid order be complied with by the    OPs, within a period of 30 days from the      receipt of its certified copy, failing which they        shall, jointly and severally, pay the sum of   Rs.40,000/-, along with interest @18% per       annum from the date of purchase of the       Computer Notebook i.e. 23/01/2009, till   realization, besides paying the costs of       litigation as Rs.7,000/- to the Complainant”.

2.              The facts,  in  brief,  are that the complainant, purchased one ACER Notebook, Aspire 4530 from OP No.1, vide Invoice No. 629 dated 23.01.2009, for a sum of Rs.30,000/-. It was stated that the said Notebook remained out of order, right from the very beginning. When the OPs were informed, they made futile efforts to rectify the defects. A legal notice dated 12.8.2009, was served upon the OPs, for the refund of amount, paid by the complainant, for the purchase of aforesaid Notebook, and for payment of compensation for unnecessary mental agony, and, harassment caused to her, but the same was not replied. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.              OP Nos.1 and 2 were duly served, but neither they nor any duly authorized representative, on their behalf appeared. Accordingly, OP Nos.1 and 2, were proceeded against ex-parte, on 20.01.2010 and 25.02.2010, respectively, by the District Forum.

4.              OP Nos.3 and 4, in their joint written statement/ reply, admitted the factual matrix of the case. It was stated that the problem, complained of, by the complainant, mainly related to the installation of pirated windows, which were not recommended by the Company, as the same cause virus in the web drivers. It was further stated that, on inspection of the Notebook, it was found that the complainant, on her own, had also got installed, non-genuine software, in the machine. It was further stated that, since the complainant, had got the drivers installed from OP No.1, which was only an authorized reseller, and not an authorized service provider, the terms of warranty, automatically lapsed. It was further stated that, in case of any technical problem, the complainant was required to approach only the authorized service centre of the answering OPs, but she did not do so, and, thus, she violated the terms & conditions of the warranty. It was further stated that, under these circumstances, OPs No.3 and 4, could not be held responsible for any defect, in the computer Notebook. It was further stated that, whenever, a complaint was made by the complainant, the answering OPs, duly attended to, and, rectified the same. It was further stated that an advice  was given to the complainant, to get the genuine software installed or loaded, in her computer Notebook, which she did not do, as a result whereof, the problem occurred time & again, and the entire operating system got corrupted. It was further stated that neither there was any deficiency, in rendering service, on the part of the OPs, nor they indulged into unfair trade practice. The remaining allegations, were denied, being wrong.

5.              The Parties led evidence, in support of their case.

6.              Lateron, none appeared on behalf of OP Nos. 3 & 4, on 23.12.2010, and, as such, the District Forum, proceeded to dispose of the complaint, on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Act, in their absence.

7.              After hearing the Counsel for the complainant, and on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

8.              Feeling aggrieved, the instant appeal, has been filed by the OPs/appellants.

9.              We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

10.           The Counsel for the appellants, submitted that, no doubt, the ACER Notebook was purchased from OP No. no.1, by the complainant. He further submitted that, since the pirated windows were got installed, in the computer Notebook from an authorized reseller, and not from an authorized service provider, as such, it was against the terms and conditions of the warranty. He further submitted that, therefore, the appellants/OPs were not liable, for damage caused to the said Notebook. He further submitted that, neither there was any deficiency, in rendering service, on the part of the OPs, nor they indulged into unfair trade practice. He further submitted that the District Forum, was wrong, in accepting the complaint. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.

11.           On the other hand, the Counsel for the respondent submitted, that no documentary evidence, was produced, on the record, on behalf of OPs No.3 and 4, to prove that pirated windows were got installed, in the computer Notebook, by the complainant. He further submitted that the order of the District Forum, being legal, and valid, deserves to be upheld.

12.           After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The main dispute, between the parties, is only with regard to the installation/loading of alleged pirated windows, as well as drivers, by OP-1, in the computer Notebook, which was purchased by the complainant from it. It was proved, from the evidence, on record, that, as soon as, the complainant purchased the said computer Notebook from OP No.1, it developed defects, but the same were not rectified by OP No.1. The case of OP Nos.3 and 4, was that the said computer Notebook was purchased by the complainant, from OP No.1, their authorized reseller, and not from their authorized dealer, whereafter, the pirated windows were got installed therein from OP No.1, which was not their authorized service provider, as a result whereof, defects occurred in the computer Notebook. No cogent and convincing evidence was produced by the OPs, to prove this factum. In our considered opinion, the complainant could not know, as to whether, OP No.1, was the duly authorized dealer of OP Nos.3 and 4, or authorized reseller. It was for the manufacturers, to take decision, in respect thereof. It was for the manufacturers to ensure, that the machines manufactured by them, were sold only by their authorized dealers and not by their authorized resellers. In case, OP No.1, was not authorized dealer of OP Nos. 3 and 4, they could take stern action against it, but they did not do so. Since, OP No.1, was the authorized reseller of OP Nos.3 and 4, when it installed the windows/software, in the computer Notebook, the complainant, being a layman, and non-technical hand, could not say, as to whether, such windows loaded by OP No.1, were pirated or genuine. The complainant spent a total sum of Rs.30,000/-, for the purchase of computer Notebook, as also, for getting installed the windows in it. As stated above, no cogent and convincing evidence was produced, on record, by OP Nos.3 and 4, to prove that the windows which were installed, in the computer Notebook, were pirated. Such a case was set up, in the written reply, by OP Nos.3 and 4, merely on the basis of conjectures and surmises. The District Forum, was right, in holding that the computer Notebook was defective, right from the beginning, when the complainant purchased the same. Since, it was having a manufacturing defect, the same could not be rectified by OP No.2, authorized service centre of OP Nos. 3 and 4. The OPs, were, thus, certainly deficient, in rendering service and indulged into unfair trade practice. The District Forum, was, thus, right in holding that since the defect, in the computer Notebook, could not be rectified, which was inherent, the complainant, was  entitled to the refund of the price thereof and compensation, for causing her mental agony & physical harassment. The submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.

13.           The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.           For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.5,000/-. The impugned order is upheld.

15.           Certified Copies of this order be sent to the parties, free of charge.

16.           The file be consigned to Record Room, after completion

Pronounced.

November 1, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg