Chandigarh

DF-I

CC/4/2016

St. Kabir Public School - Complainant(s)

Versus

M/s Beyond Computers - Opp.Party(s)

Pankaj Chandgothia

28 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                               

Consumer Complaint No.	:	CC/04/2016
Date of Institution	:	31/12/2015
Date of Decision	:	28/11/2017

 

St. Kabir Public School, Sector 26, Chandigarh c/o Kabir Educational Society, through its Administrator, Sh. Gurpreet Bakshi.

…..Complainant

V E R S U S

1.     M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh, through its Proprietor.

2.     Mr. I.P. Singh, Proprietor, M/s Beyond Computers, SCO 371-372, First Floor, Sector 35-B, Chandigarh.

3.     M/s Dell India Pvt. Ltd., No.12/1, 12/2-a & 13/1-a, Ground Floor, Challaghatta Village, Varthur Hobli, Domlur, Bengaluru, Karnataka – 560071, through its M.D.

4.     M/s Ingram Micro India Ltd., SCO 60, IInd Floor, Sector 47C, Chandigarh through its Branch Head.

5.     M/s Ingram Micro India Ltd., Godrej IT Park, B-Block, 5^th Floor, Pirojshanagar, Vikhroli (West), Mumbai-400079, through its M.D.

……Opposite Parties

CORAM :	MRS.SURJEET KAUR	PRESIDING MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                       

ARGUED BY	:	Sh. Pankaj Chandgothia, Counsel for complainant.
	:	OPs 1 & 2 ex-parte
	:	Sh. Salil Sabhlok, Counsel for OP-3
	:	Sh. Ramandeep Singh, Counsel for OPs 4 & 5

Per Surjeet Kaur, Presiding Member

1.         The facts of the consumer complaint, in brief, are that for the purpose of enhancing education of its students, the complainant school bought 40 sets of WYSE thin client T 50 from the OPs vide invoice dated 26.8.2013 for a total sum of Rs.6,84,600/-, but, they started malfunctioning within a short period.  The THIN CLIENT’s started hanging-up during login and also during working on the applications due to which the students were unable to perform any work. The said hardware problem was brought to the notice of OPs upon which their officials/engineers visited the school several times and committed to replace the same vide their email dated 17.2.2014 and also promised to supply the standby machines so that the education of the students did not suffer, but, all their promises turned out to be false.  Having no alternative, the complainant vide email dated 1.5.2014, called upon the OPs to refund the amount of the invoice value and also served a legal notice dated 17.6.2014, but, to no avail.  As per the complainant, on account of the defective products and wrongful conduct of the OPs, the purpose of buying the products was defeated. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, the complainant has filed the instant complaint.
2.         OPs 1 & 2 did not appear despite due service, therefore, they were proceeded ex-parte vide order dated 30.3.2016.
3.         OP-3 in its written reply has admitted that 40 sets of T50 were purchased from OP-1 by the complainant after being satisfied from the demo given.  However, it has been averred that the OP was not consulted for setup/ recommendation i.e. which product would be advisable keeping in view that the lab was already working and servers, CRTs etc. were already installed. It has been stated that thin client is user end device of what is operating on the server and the servers used by the complainant were of HP. All the consultation and recommendations were by OP-1. It has been denied that there is any manufacturing defect in the products and, therefore, the question of replacement does not arise.
4.         OPs 4 & 5 in their joint written reply have denied that they sold any product to the complainant or installed the same.  It has been averred that they are not connected with the sale or after sale services of the alleged computers purchased by the complainant. It has been denied that any engineer of the OPs inspected the computer lab of the school and gave assurance with regard to usability and suitability of the products. It has further been denied that any commitment was made by the OPs for any kind of replacement. It has been stated that there is no privity of contract between them and the complainant.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs 4 & 5 prayed for dismissal of the complaint.
5.         The contesting parties led evidence in support of their contentions. 
6.         We have gone through the record and heard the arguments addressed by the learned Counsel for the contesting parties.
7.         It is evident from Annexure C-2, coupled with the affidavit of Administrator of the complainant school, that the complainant purchased 40 sets of WYSE thin client T 50 from OP-1 manufactured by OP-3 for Rs.6,84,600/- on 26.8.2013.  The sole grouse of the complainant is that in the beginning of purchase of aforesaid machines, they started giving problems/malfunctioning by hanging up during log in and also during working on the application due to which the students were unable to perform any work being integral part of their education.  Various reminders were sent to the OPs to do the needful and finally vide email dated 17.2.2014 (Annexure C-3), the complainant requested the OPs for replacement of the machines in question but, till date, despite service of legal notice, neither the machines have been used by the students at the premises of the complainant nor they have been replaced by the OPs despite commitment made by OP-3 vide email dated 30.6.2014 (Annexure C-5).
8.         OPs 1 & 2 did not appear to contest the claim of the complainant and preferred to proceed against ex-parte.  This act of OPs 1 & 2 draws an adverse inference against them.  The non-appearance of OPs 1 & 2 shows that they have nothing to say in their defence against the allegations made by the complainant.  Therefore, the assertions of the complainant go unrebutted and uncontroverted qua them. 
9.         The stand taken by OP-3 is that the complainant after being satisfied with the demo given, purchased the machines in question.  It has been contended that all the consultation and recommendations were by OP-1 and it cannot be held liable for any manufacturing defect in the machines, therefore, the question of replacement does not arise. Further, OPs 4 & 5 have contended that they are not connected with the sale or after sale services of the alleged machines purchased by the complainant and no commitment was made by them for any kind of replacement. As there is no privity of contract between them and the complainant, therefore, they cannot be held liable for any deficiency in service or unfair trade practice.
10.         The first question for consideration in the present case is whether the complainant falls within the definition of a ‘consumer’ or not? The answer to the same is in the affirmative. It has been alleged by the OPs that the complainant purchased the aforementioned machines for commercial purpose, therefore, the present consumer complaint is not maintainable. However, the learned counsel for the complainant in this regard has relied upon the order of the Hon'ble National Commission in Delhi Public School Vs. The Managing Director/Chairman, Uttar Haryana Bijli Vitran Nigam Ltd. & Ors., R.P. No.3211 of 2012 decided on 29.10.2014 wherein it has been held that if educational institution purchases equipments for use by the students, purchase of equipments cannot be said to be commercial even if the institution charges some amount for maintenance of equipment.  Similarly, in the present case, the act of the complainant in purchasing/installing latest technology machines for enhancing the education of the students cannot be termed as a commercial activity. Hence, following the ratio of law laid down above, the complainant falls within the definition of a ‘consumer’ and the present complaint is maintainable.  Hence, the application filed by OP-3 for dismissal of the complaint as the complainant does not fall under the definition of ‘consumer’ as defined in Section 2 (d) of the Consumer Protection Act, 1986 is also disposed of. 
11.         A perusal of the documents on record, especially the emails between the complainant and OP-1/OP-3 reveal that the machines in question were not giving appropriate results, as desired by the complainant, for the students and, therefore, the matter was immediately conveyed to the OPs for the necessary steps to be followed, but, as per the complainant, till date, the machines in question are faulty and a few standby machines were also provided for the redressal of the grievance of the complainant.  However, since the machines purchased were not giving desired results, therefore, the complainant purchased new machines to give latest education to the students of its school. 
12.         A perusal of the email (Annexure C-3) makes it crystal clear that the complainant wrote on 17.12.2014 after getting harassed at the hands of the OPs for the replacement of the machines at the earliest and on the same day OP-1 replied to the complainant that the company has agreed to replace the same and is sending more standby machines for the time being.    At page 22 OP-3 also wrote to the complainant after making visit of its engineers and apologized for the delay in writing the summary of its observation.  At page 23, there is detailed mention of the problem description and steps that OP-3 tried.  Even feedback by the customer i.e. complainant has been mentioned in this email depicting the hanging problem while working on the machines.  Through this email OP-3 apprised the complainant that it is working to resolve the issue and as an immediate resolution, it is arranging couple of more S10 devices.  Again on page 25 OP-3 gave the observation after inspecting the machines that the lab server of the complainant was infected with lots of virus and it was taking steps to detect the problem after scanning the server, meaning thereby OP-3, being the manufacturer of the machines in question, was well versed with the problem faced by the students at the school of the complainant, but, no specific/authentic solution was provided to resolve/redress the grievance of the complainant.  Rather, the process of email communication kept on continuing for a long time without any fruitful results. We are of the opinion that school is an organization not only to impart education to the students/children, but, also make effort for their harmonious development.  In the present scenario, when the competition is so high amongst the students to achieve the best to meet their goals, the complainant invested a hefty amount of Rs.6,84,600/- for the purchase of the machines for a noble cause for enhancing the education of the students, but, the whole purpose of purchasing the machines got defeated and even after investing such a huge amount, the complainant school had to face failure of its effort as the machines in question did not work properly.  The complainant despite spending a lot of time and energy had to suffer harassment at the hands of the OPs as they failed to redress the grievance of the complainant.  The act and conduct of the OPs amounts to deficiency in service and indulgence in unfair trade practice.
13.         In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs are directed as under:-

1. To immediately refund the invoice value of the machines in question i.e. Rs.6,84,600/- to the complainant with interest @ 6% per annum w.e.f 26.8.2013 (date of purchase) till realization.  However, the complainant shall handover all the machines, including those provided as standby, to the OPs.
2. To pay Rs.40,000/- to the complainant as compensation for the harassment caused to it;
3. To pay to the complainant Rs.10,000/- as costs of litigation.

14.         This order be complied with by OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
28/11/2017	[Suresh Kumar Sardana]	[Surjeet Kaur]
hg	Member	Presiding Member