DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of August 2013 

Present: Smt.Seena.H, President

            : Smt.Preetha.G.Nair,   Member

            :  Smt.Bhanumathi.A.K, Member                 Date of Filing : 07/01/2012

 

K.Sivadasan,

S/o.K.Balanarayanan,

Advocate, Kariveettil House,

Pulappattasseri, Ambalappara,

 

Ottapalam Taluk

Palakkad                                           -                  Complainant

(By Adv.K.Dhananjayan)
 

        Vs 

1.Vinayaka Moorthy,

   The Manager / Authorised Signatory,

   C/o.M/s.Sreenivasa Systems

   Engineering, 95-K, 3^rd Floor,

   Prasad Chamber, R.S.Puram,

 Coimbatore – 641 002

 (By Adv.K.Divakaran)

 

2.The Manager/Authorised Signatory,

   Toshiba India Pvt.Ltd.

   3^rd Floor, Building No.10,

   Tower B, Phase II, DLF

   Cyber City, Gurgaon – 122 002

   Haryana

(By Adv.Manoj Ramaswamy)

 

3.The Manager/Authorised Signatory,

    M/s.Redington India Ltd.,

    No.94A and 95 Prasad Chambers,

    East Arokiaswami Road,

    R.S.Puram, Coimbatore                   -                  Opposite parties

(Party in person)

 

Order by Smt.Preetha.G.Nair, Member

 

    The complainant has purchased a Toshiba Satellite Lap Top personal computer from the 1^st opposite party of L640-431 AS No.6A161205W, for his personal and professional use on 24/08/10. The 1^st opposite party made the complainant to believe that they are the authorized dealer of Toshiba India Pvt.Ltd.. On his assurance and promise the complainant has arranged a personal computer loan from the KSFE for Rs.89,556/- for the purchase of two computers at the rate of Rs.44,928/- each. The complainant is an Advocate by profession. The complainant has purchased one computer from 1^st opposite party manufactured by 2^nd opposite party. It has got an international limited warranty and it bears the registration ID GOO85975. As per the international  warranty, the product is covered by an international limited warranty programme  for a period of 3 years or one year validity starting from its date of purchase. The complainant was using the computer for his personal purpose by strictly following the instructions contained in the instruction and operation manual supplied by 1^st opposite party for and on behalf of 2^nd opposite party. On 26/08/2010 i.e. within 2 days of its purchase itself, the laptop started giving troubles. The complainant informed the 1^st opposite party about the problem and on the first instance 1^st opposite party had given a preliminary service and then later it has been serviced and repaired the computer on 28/10/10. Even after the service done by opposite parties still following problems exist with the computer.

 

1.    System was slow in when it was started the first time after charging the battery for eight hours.

2.    Within a week the laptop slowed down while performing even simple functions and it switched off on its own

3.    Within one month it experienced audio and booting trouble and then the laptop failed to work entirely.

4.    After replacement of the component again audio and video trouble continues from the date of replacement onwards. After curing the defects by the engineer the system not perform more than two functions without slowing down or freezing.

5.    The blue tooth device crashed twice and did not respond for 2 days. USB devices are recognized only once at a time despite these being 2 USB parts.

 

Now the complainant is convinced that inspite of the repair and due service of the computer, it is not fully working and its functioning is totally substandard and is not at all useful for meeting its desired aim and objects of its purchase. The persisting problem with the computer was a very serious nature and it is patent in nature and it cannot be rectified and is to be replaced.

The complainant has personally approached the 1^st opposite party for an amicable settlement, but they had instead of trying to settle the genuine disputes has abused him with filthy words and shown an impolite air and manners. In addition to the manufacturing defect of the computer the complainant has suffered a very humiliating response from the side of the 1^st opposite party. Thereafter the complainant had sent a lawyer notice to the opposite parties. Though 1^st and 2^nd opposite parties have accepted the notice except 1^st opposite party no one has responded. 3^rd opposite party had serviced the laptop computer, they could not even rectify the mistake of the laptop and simply serviced the set  without taking any honest endeavour to sort out and extinguish the problem. Though the notice has been sent as early as on 1/12/10 and reply notice from the 1^st opposite party has been received on December 2010, the complainant was expecting some kind of positive response from the opposite parties. So the complaint was not filed immediately. The complainant could not use the laptop computer even now in full performance but he is charging the battery of the computer in order to avoid further troubles and extinction of the battery and the computer. Hence the complainant prays an order directing  the opposite parties 1 and 2 to pay an amount of Rs.1,50,000/- as compensation on the deficiency of service and cost of the proceedings.

Opposite parties filed version stating the following contentions. It is admitted that the complainant had purchased a Thoshiba Satellite Laptop personal computer from the 1^st opposite party on 24/08/2010. The 1^st opposite party had never assured that he is doing service of Toshiba computer. Actually the service centre of the product is 3^rd opposite party. The complainant specifically asked for the model Toshiba Laptop 2640x431A and it was supplied giving a special discount of Rs.1,000/- and a mouse and pen drive free. On 15/10/10 the complainant brought the product stating that some defects have occurred in the product and immediately the 1^st opposite party sent the product to 3^rd opposite party who is the service provider of the company. The product was got repaired by 3^rd opposite party. The hard disc was replaced and the complainant was fully satisfied with the repair and replacement and he has put his signature stating that he is satisfied with the repair.

 

       The defects occurred if any is only due to the mishandling and misuse of the product. The system will slow down due to overload. Due to virus  also the system will slow down. Due to insertion of USB having virus and insertion of pirated software also many defects will occur in the computer. The defect stated is not due to a manufacturing defect. The 1^st opposite party has never  used abusive language against the complainant. Actually the 1^st opposite party was very friendly with the complainant and taken all pains to redress the complaints and he had directed the complainant not to use pirated software and virus filled USBs or pen drives. The 1^st opposite party had sent the reply stating the true facts. It is to be noted that after a lapse of more than a year from the date of notice complaint is filed. The complainant was using the product all these days without any complaint. There is no deficiency in service on the part of 1^st opposite party. Hence 1^st opposite party prayed that the complaint may be dismissed with cost.

 

Neither  the 3^rd opposite party nor any of the other opposite parties actually or voluntarily resides or carries on business or has a branch office within the territorial jurisdiction of the Hon’ble Forum. The  3rd opposite party stated the laptop was handed over to them on 15/10/10 by the 1^st opposite party complaining with problems that the system was not booting. Then 3^rd opposite party inspected the laptop and diagnosed problem in the Hard Disk drive of the laptop. Since the laptop was found to  be within the warranty period the service center had sought for the spare part from the 2^nd opposite party and replaced the same in the laptop. The laptop was returned in good working order to the complainant on 28/10/10. Further 3^rd opposite party performs a compulsory demo at the time of delivery of devices after repairs even if the customer does not insist for the same and the laptop was found to be in perfect working condition and the fact was also acknowledged by the complainant. The 3^rd opposite party stated that the hard disk drive in the laptop had developed the problem of slowness only on account of installation of pirated software in the laptop. Hence the service engineer of the 3^rd opposite party had advised the complainant not to install or work with pirated software henceforth. They are unaware of the subsequent problems encountered by the complainant in the subject mentioned laptop. The 3^rd opposite party had duly replied to the notice sent by the complainant. The complainant is not entitled to any relief as sought in the complaint against 3^rd opposite party. Hence they prayed that the complaint may be dismissed with cost.

2^nd opposite party entered appearance, but version and affidavit not filed.

Complainant and 1^st and 3^rd opposite parties filed their affidavit. Ext.A1 to A9 marked on the side of complainant. Ext.B1 to B6 marked on the side of opposite parties. Commission report was marked as Ext.C1 & C2.

Matter heard.

Issues to be considered are

1.    Whether there is any deficiency in service on the part of opposite parties?

2.    If so, what is the relief and cost ?

Heard both parties and perused relevant documents on record. 1^st opposite party is admitted that the complainant had purchased a Thoshiba Satellite Laptop personal computer from them on 24/08/10 and it is evident from Ext.A1. According to the complainant within 2 days of its purchase itself to put it precisely from 26/08/10 laptop computer started giving problems. In Ext.A5 the 3^rd opposite party has repaired the computer with replaced the hard disk drive. Further complainant stated that after replacement of the component again audio and video trouble continues from the date of replacement onwards. Complainant is an advocate by profession and using the computer for his personal purpose by strictly following the instructions contained in the instruction and operation manual supplied by opposite parties.

According to the complainant even after the service done by  opposite parties still following problems exist with the computer. The complainant stated that the notice sent on 01/12/2010 and reply notice from 1^st opposite party has been received in December 2010, the complainant was expecting some kind of positive response from them and so the complaint was not filed immediately. The complainant has arranged personal loan from KSFE for the purchase of computer. The part of cause of action arised within the jurisdiction. Hence the complaint is maintainable.

Commissioner has filed reports marked Ext.C1 & C2. In C1 report dated 22/02/2013 Commissioner noted that “it is not able to tell whether it is a manufacturing defect and also whether it is inherent curable by mere visual inspection. Some of the defects specified in the work memo filed by counsel of complainant can be corrected by reinstalling the system. But the reason for switching off the system unexpectedly is not known. Also the reason for not booting again for a long time even after giving power is also unknown”. No contradictory  evidence produced by the opposite parties. Moreover the opposite parties had not examined the commissioner to prove the reason for the defects of the computer.

According to 1^st opposite party “the defects occurred if any is only due to the mishandling and misuse of the product. The system will slow down due to overload.

Due to virus also the system will slow down. Due to insertion of USB having virus and insertion of pirated software also many defects will occur in the computer”. But the opposite parties had not produced documentary evidence to prove that the computer of the complainant has overload, virus problem and inserted pirated software. 3^rd opposite party is the service provider was got repaired and replaced the hard disc of the laptop. In C1 report the commissioner stated that

“Laptop is loaded with genuine windows 7 home basic as its operating system rest of the software cannot be checked by mere visual inspection”.

 The counsel of complainant argued that commissioner noted in C1 report that “Not seen any tampering or physical damage” The complainant has used the computer very careful. In Ext.B3 the complainant has purchased the defective computer from 1^st opposite party for an amount of Rs.44,000/- Complainant has produced the laptop before the Forum on 31/10/12. In Ext.C1 & C2 the commissioner has noted the defects of computer. But the opposite parties had not produced evidence to show that the defects was not occurred due to the manufacturing. 1^st opposite party is admitted that on 15/10/10 the complainant brought the laptop stating that there are some defects in the computer and sent to 3^rd opposite party. So the defects of the computer was found within 2 months from the date of purchase. Also the complainant has sent lawyer notice within the warranty period. In Ext.A3 as per the warranty, the product is covered by an international limited warranty programme for a period of 3 years or one year validity stating from its date of purchase. The 1^st opposite party argued that in the C2 commission report commissioner stated that the software down loaded from the computer was after the service of the laptop   returned to the complainant after service. But the 1^st opposite party has not produced documentary evidence to prove that software downloaded from the computer had viruses occurred defects. No documentary evidence produced by 1^st and 2^nd opposite party to show that they had ready to repair or replace the computer within the warranty period.  Though the 2^nd opposite party has appeared through counsel, they have not filed any version and affidavit. Therefore the allegations of the complainant against them remained unchallenged. The commissioner has filed C1 & C2 report and stated the  defect of  the computer. The expert commissioner stated that the computer is not functioning, is abruptly switch off, get over heated than normal one, and the files are not able to transfer. No contradictory evidence produced by the opposite parties. In short the complainant has not used the laptop within the warranty period, due to the defects.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties 1 & 2. 3^rd opposite party is the authorized service provider of Toshiba company and the complainant has not claimed any relief against them. Hence 3^rd opposite party is exonerated from any liability.

In the result complaint allowed. We direct the 1^st and 2^nd opposite parties jointly and severally liable to pay the complainant an amount of Rs,.50,000/- (Rupees Fifty thousand only) as the cost of the laptop and compensation for deficiency in service along with Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings. On receipt of the order complainant directed to return the defective laptop to the 1^st and 2^nd opposite parties.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.  

 

Pronounced in the open court on this the 30^th  day of August 2013.   

   Sd/-

Seena H

President

 Sd/-

Preetha G Nair

Member

 Sd/-

Bhanumathi.A.K.

Member

 

Ext.A1 – Bill for Rs.89556/- issued by Srinivasa System Engineering Coimbatore

            to the complainant

Ext.A2 – Delivery challan issued by Redington India Ltd. to Srinivas System

            Engineering Coimbatore for sale and delivery of laptop.

Ext.A3 – Original guarantee card issued by Toshiba International Ltd. to the

            complainant

Ext.A4 – Consumer /Vehicle loan payment note issued by KSFE, Kanjikode to

             Srinivas Engineering System Coimbatore

Ext.A5 – Service call report issued by Redington India Ltd.

Ext.A6 series – Copy of lawyer notice issued to opposite parties 1 to 3 with postal receipts & AD cards.

Ext.A7 –Reply notice sent by 1^st opposite party advocate

Ext.A8 –Returned lawyer notice sent to 2^nd opposite party

Ext.A9 – Reply notice send by the 3^rd opposite party to the complainant

 

Ext.B1 –Photocopy of Delivery Challan dtd.28/10/10

Ext.B2 –Letter given by Compu soft systems to the 1^st opposite party

Ext.B3 –Photocopy of Invoice dated 18/08/2010

Ext.B4 – Photocopy of Delivery challan dated 28/10/10

 

Ext.B5 – Letter from Redington Chennai to complainant dtd.6/1/11

Ext.B6 - Photocopy of postal receipts

 

 

C1 – Usha.K. Associate Professor, NSS College of Engineering, Palakkad

C2 – Usha.K. Associate Professor, NSS College of Engineering, Palakkad

 

Rs.5,000/- allowed as cost of the proceedings.