BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.294 of 2014

Date of Instt. 25.08.2014

Date of Decision :27.02.2015

Paramjit Lal son of Lekh Raj R/o VPO Dhingrian, Near Adampur Tehsil and District Jalandhar.

..........Complainant

Versus

1. M/s Open Choice Computers EJ 192, Opp.Shivaji Park Near Partap Bagh, Jalandhar through its Prop./Partner/Authorized Person.

2. Mohit Kumar, Authorized Person/Partner/Prop.M/s Open Choice Computers EJ 192, Opp.Shivaji Park Near Partap Bagh, Jalandhar through its Prop./Partner/Authorized Person.

3. M/s Dell Computers having its office situated at Police Lines Road, Near Easy Day Store, Jalandhar City through its Manager.

4. M/s Dell India Pvt Ltd, Divyashree Greens, Ground Floor, Shop No.12/1, 12/2A, 13/1A, Challaghatta Village, Varthur Hubli, Banglore South, Banglore-560071, Karnatka State through its Manager Director.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S.Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Gurvinder Arora Adv., counsel for complainant.

Sh.Aditya Jain Adv., counsel for OPs No.1 & 2.

Sh.Rajinderbir Singh Adv., counsel for OP No.4.

Opposite party No.3 exparte.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant had purchased one laptop of Dell make bearing service tag No.9494QVI worth Rs.27500/- vide invoice No.1701 dated 6.3.2014 issued by opposite parties No.1 & 2 and the said computer has been manufactured by opposite party No.3 having their office in all major cities on India and at Jalandhar also. After a few days of the purchase of the above said laptop, complainant found that the above said laptop was not having proper audio and nothing was audible even when the volume was made to the maximum. There is manufacturing defect in the above said laptop. Complainant approached opposite parties to replace the above said laptop or to rectify the defect but opposite parties neither replaced the said laptop nor rectified the defect due to which complainant is unable to enjoy and use the laptop since there is no audio in the said laptop. On such like averments, the complainant has prayed for directing the opposite parties to replace the computer i.e Laptop with new one. He has also claimed damages.

2. Upon notice, opposite parties No.1 and 2 appeared and filed their written reply raising preliminary objection regarding maintainability, complainant being not consumer, not approaching the Forum with clean hands and suppressing the true and material facts, non joinder of necessary party etc. They further pleaded that the complainant has misrepresented the facts in the complaint and has filed the complaint by levelling false and frivolous allegations. In fact, there is no manufacturing defect in the laptop as alleged. The complainant has used laptop for four months after its purchase and came to opposite parties No.1 & 2 in month of June, 2014 with the audio problem and the opposite party No.1 told the complainant that they do not provide any warranty and services and requested the complainant to contact Dell company and also gave the address of Dell company, mentioned above. It is pertinent to mention that the audio problem was only because the complainant has downloaded the pirated software including one VLC from net, for which he is criminally liable. The complainant purchased DOS version of laptop, which is without any widow operating system, which means without any audio/video software and instead of purchasing the original software from the market the complainant downloaded pirated software's including one VLC from net for audio purposes and installed the same in the laptop, due to which there is audio sound problem, as such, the same is not a manufacturing defect. The complainant has even purchased items from the opposite parties No.1 &2 on 25.3.2014 as well as 13.5.2014, which proves that there was no defect in the laptop at that time, otherwise, the complainant would not have made any purchase from the opposite parties No.1 & 2. They denied other material averments of the complainant.

3. Opposite parties No.3 & 4 did not appear inspite notice and as such they were proceeded against exparte.

4. However at arguments stage, Sh.Rajinderbir Singh Adv., has filed memo of appearance on behalf of opposite party No.4.

5. In support of his complaint, learned counsel for the complainant has tendered affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C4 and closed evidence.

6. On the other hand, learned counsel for opposite parties No.1 & 2 has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP12 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties.

8. It is not disputed that complainant purchased Laptop make Dell from opposite party No.1 for Rs.27,500/- vide retail invoice dated 6.3.2014 Ex.C1. According to complainant, there is manufacturing defect in the laptop as there is no audio in it. According to the opposite parties, the complainant purchased DOS version of laptop, which is without any widow operating system, which means without any audio/video software. Counsel for the opposite parties contended that the problem of audio occurred as complainant downloaded pirated software's including one VLC from net for audio purposes due to which there is audio problem and there is not manufacturing defect in it. Complainant has not examined any expert witness to prove that there is any manufacturing defect in the laptop in question. Moreover, he has purchased the DOS version of the laptop and in the DOS version the software is installed by the purchaser. According to the opposite parties, the complainant had downloaded pirated software and problem of audio occurred due to this reason. Since in the DOS version, there is no audio/video software and same is required to be installed by the purchaser, as such if there is any audio problem, it can not be said that the same is on account of any manufacturing defect in the laptop. The defect in the audio might be due to installing of pirated software by the complainant. The complainant purchased laptop from opposite party No.1 on 6.3.2014 and even thereafter he purchased Laser Printer from opposite party No.1 vide retail invoice dated 25.3.2014 Ex.OP5 and further speakers vide retail invoice dated 13.5.2014 Ex.OP6. In case there was any manufacturing problem in the laptop then complainant would not have made subsequent purchases from the opposite party No.1 on above said dates. Counsel for the opposite parties contended that in fact complainant is doing the business of computer and is dealer himself. Counsel for the opposite parties further contended that complainant used to purchase different items from opposite party No.1 to sell the same to the buyers. To prove this fact, the opposite parties have proved retail invoice dated 16.9.2013 Ex.OP1 vide which the complainant purchased LED Monitor, Keyboard, Mouse, UPS from opposite party No.1. He further purchased Canon Laser Printer from opposite party No.1 vide retail invoice dated 7.10.2013 Ex.OP2. He also purchased Cabinet, DVD Writer, Mother Board, 19" LED Monitor, Keyboard, Mouse and UPS vide retail invoice dated 21.2.2014 Ex.OP3. It appears that complainant is himself doing the business of computer/laptop items for commercial purpose. It is not a case of the complainant that he is doing so to earn livelihood by way of self employment. It is not at all probable that any individual would purchase the above said items for his personal use. A mother board can not be used by any individual but by some business man or dealer who is dealing in the computer items or doing computer business. So in this view of matter complainant can not be termed as consumer under the Consumer Protection Act.

9. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

27.02.2015 Member Member President