BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.779/2013

DATED THIS THE 16^th DECEMBER 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Mr.R.Vinod,

Aged about 25 years,

S/o. Mr.Ravi.G,

R/o. No.242, II Cross, 7^th Block,

Koramangala, Bangalore-95  

V/s

Opposite party:-                              

                                                M/s. DELL India (P) Ltd,

                                                Regd office, Divyashree Greens,

                                                Ground Floor, 12/1, 12/2A, 13/1A,

                                                Chellaghatta Village, Varthur hobli,

                                                Bangalore South Taluk           

                                                Reptd by its Managing Director

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to pay a sum of Rs.1,57,800=00 due to supply of defective laptop and deficiency in service, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under:

On 15-10-2010, the complainant had purchased a brand new laptop that has been manufactured by the OP Company having the brand name as Dell Studio 15 Core I 5-HYW37BS from one of the authorized dealers of the OP by name reliance computers, SP Road, Bangalore-02 vide cash bill bearing no.2896 dated 15-10-2010 for Rs.54,300=00. The complainant had been allotted the customer number as 791263833 by the OP. From the time of purchase of the Laptop as aforesaid, the complainant had been experiencing several technical systems malfunctioning etc. At that point of time, the complainant had been under the impression that the software such as Microsoft windows, Java by oracle, Acrobat Reader by Adobe and Microsoft Windows etc, were internally conflicting with each other and did not suspect any defects issues regarding hard disc or other hardware, when the complainant was in such a situation though he was constantly experiencing various malfunctioning with the laptop. The complainant who had invested the amount for purchasing the same had no other alternative data storage space and as such the complainant had stored very important date such as his M.Tech. Project, seminar documents, study materials, research materials, assignments, home ceremony photos, work details of his company and personal data. On 25-10-2011 all of a sudden the laptop had started functioning very slow and he contacted the technical support help line of the OP. The complainant had lodged a complaint in case ID No.8445998700 with the OP and the OP deputed service engineer by name Praveen Shetty and he insisted the complainant to enter certain Debug commands in the BIOS to the complainant and the said Praveen Shetty had not informed the complainant to take back up of data, and on account of which, after debugging, the entire data to the extent of 500 GB approximately got wiped out as a result of which the complainant was made to lose valuable, expensive and irretrievable data for no fault of his. But evenafter negligent debugging done by the service engineer of the OP the same problem continued to persist in the laptop. This attitude of the OP also goes to show and reflects the intention and deliberation that had been exercised towards the complainant by under estimating and taking the complainant for granted which is hereby highly condemned by the complainant. Once again on 23-1-2012 the complainant had been constrained to raise the second level of escalation of the problem which is registered in case ID No.850143521 during this period also there was a deficiency in service by the OP which had informed the complainant that the original windows 7 which was dispatched was also damaged, once again another case ID number that was registered by the complainant was 844598700 also on account of the hardware issue with the laptop and the negligence of insisting the complainant to enter the debug command by the service engineer of the OP, the complainant’s hard drive of the laptop is not at all working and was showing partition error for which once again another case ID No.845320426 had been registered with the OP by the complainant. The OP had want only avoided to enter into a full fledged service contract with the complainant by predicting the consequences and ironically proceeding upon the dangerous experiment of debugging in the BIOS of the laptop. Thereafter, only upon the oral assurances, representations and promises made by the OP, the complainant had been generous enough to await for a very long time with patience and perseverance. On account of the defective laptop supplied by the OP and also the deficiency of services by the OP, the complainant was forced by the OP to incur expenses of approximately Rs.5,000=00 towards extended warranty. The service team has replaced a refurbished optical drive which is also not functioning properly, the same is registered at case ID number 853155542.  The complainant had contacted the technical support team, customer support team the escalation to Managers, supervisors and the top officers of Dell, still the complainant is unable to get a solution to his problems with the defective laptop supplied by the OP. Later the system gets shut down and restarts on its own. The complainant having now become very unhappy with the poor services that were rendered by the OP, when the OP had collected the amount for the value of the laptop and now the complainant has become entitled to the replacement of a new laptop which is to be directed to be given by the OP by taking back the existing one. The recent case ID bearing no.871060597 had been registered by the complainant in the month of January 2013 and on account of which the optical drive is not working and the laptop is making a loud noise when a CD is inserted in the optical drive and within 30 minutes from the time of booting it completely shuts off surprisingly again when the system is powered on within 10 seconds system gets shut down from the time of booting. Between 30-3-2012 and 12-1-2013 the complainant had sent several emails to the OP and the complainant had approached and requested to refund of the money paid to the OP. But instead of honestly refunding the amount to the complainant or even replacing the defective laptop with a new tested and working one. The OP had ironically represented that the money cannot be refunded and that the complainant has to purse other remedies under law. This act of the OP’s multi national company is arbitrary and unjust as the OP has committed a lapse, so there is a deficiency of service on the part of the OP. Thereafter the complainant got issued a legal notice to the OP on 19-2-2013 and the OP gave vague and untenable reply and the OP is liable to make good the loss sustained by the complainant by replacing the defective laptop with a brand new one and alongwith the same the compensation of money towards the mental agony and stress. Hence the present complaint is filed.

3. After service of notice, the OP has appeared through its counsel and filed version contending interalia as under:

The complaint of complainant is false, frivolous and vexatious and it is not maintainable either in law or on facts. The OP denies all the averments made in the complaint. The complainant had purchased a Dell system model studio 1558 from the dealer at SP Road, Bangalore on 15-10-2010 by paying Rs.54,300=00 with applicable warranty terms and conditions and the said warranty is valid for one year from the date of purchase and later the complainant paid an extra amount for extension of warranty and it was valid till 28-2-2013. On12-11-2010 the complainant had reported some technical issue with the operating system and accordingly the OP requested the complainant to take data backup and inform the same to the OP and after that the complainant has not contacted the OP for any assistance. After close to one year later i.e. on 25-10-2011 the complainant contacted again their client and reported the issue with the operating system and this case was registered under reference no.844598700. After diagnosis from the OP, it is found that issue was with the hard drive as it was giving error 0142. On every contact and on every troubleshooting OP’s representative has informed the complainant to take data backup as doing reinstall or debug on the hard drive he will lose date, so which is very much within the knowledge of the complainant also. So, the OP denies that from the time of purchase of laptop the complainant had been experiencing several technical, systems malfunctioning etc. It is the complainant’s responsibility to take data back up whenever there is any activity done on the said system. Moreover the OP also very specifically informed the complainant to take Data backup whenever contacted and inspite of that if the complainant neglected to do so the OP cannot be blamed for no fault of it. The aforesaid issue was handled by the OP’s representative Praveen vide reference No.844598700, before doing the debug to the complainant’s laptop, it was very much informed to the complainant that the Data would be wiped and advised the complainant to take data backup, so the OP cannot be blamed. The OP denies that even after negligent debugging done by the OP’s service engineer the same problem continued to persist. On 23-01-2012 the complainant contacted the OP’s technical support team, reporting that the said system has issue and he also wanted to know if the hard drive on the unit is fine or not. This case was registered under reference no.850143521 and OP’s representative after all the diagnosis informed the complainant that the OP will arrange for the engineer visit along with the HDD by that time the complainant requested for windows operating system CD and accordingly the OP agreed to arrange for the engineer with the Windows operating system CD and the hard drive. The OP denies that there was a deficiency in service by the OP. In fact, the OP arranged for HDD and the CD under SER dispatch no.780506690228. The OP never forced the complainant to buy or extend warranty and it is the sole decision of the complainant to buy the extended warranty by paying a sum of Rs.5000=00 and accordingly warranty was extended for one year. The OP denies that it has supplied defective laptop or committed any deficiency in service. The complainant contacted the OP’s technical team on 12-3-2012 reporting that system optical drive is not working and the same was registered under reference no.853155542 and after diagnosis it was found that the issue is related to optical drive and hence the OP arranged for the engineer along with optical drive and solved the issues in the laptop upto the complainant’s satisfaction. On 25-1-2013 the complainant contacted the OP and reported that the optical drive was not working and also few other technical issue such as system shutting down automatically etc. but this time instead of asking for repair the system the complainant illegally adamant on demanding for replacement of the system, eventhough he was not entitled as per the agreed terms and conditions of the warranty. The OP rightly refused to replace the system and offered another engineer visit to repair the system but the complainant did not agree for the same. The OP had very much offered service and support to the complainant’s system, however the complainant has ignored all the warranty terms and declined to accept the offer of repair as advised by the OP. The OP never delayed in providing service to the complainant. The OP denied that the complainant has been put to mental agony, suffering loss, stress and entitled to claim compensation with the OP. The complainant cannot have any grievance as he was aware of the terms and conditions at the time of taking laptop and there is no bonafides in the complainant’s approach to this forum. So the complaint is not maintainable. There is no cause of action to file the complaint. The complainant is not entitled to claim or replacement of the above laptop with a new one or claim an amount of Rs.1,57,800=00 towards the supply of defective laptop and deficiency in service. The OP has not committed any deficiency of service, so it is prayed to dismiss the complaint with cost.

4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP, in not solving the problem of laptop supplied to him?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Affirmative 

Point no.2:  The OP is directed to replace the new  

laptop of same model and hand over the same to the complainant and take back the old laptop from the complainant within 60 days from the date of this order, failing which, the OP shall refund Rs.54,300=00 to the complainant being the value of the laptop alongwith 7% interest p.a. on the said amount from the date of this order to till the date of realization alongwith Rs.2,000=00 towards cost of litigation.

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced six copies of documents with list dated 10-4-2013 and eight copies of documents with list dated 19-8-2013. On the other hand, one Sapandeep Kapoor, authorized representative of the OP has filed his affidavit and produced two documents with list dated 23-7-2013. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides scrupulously. 

7. One R.Vinod, who being the complainant has stated in his affidavit filed by way evidence that, on 15-10-2010, he had purchased a brand new laptop which was manufactured by the OP Company having the brand name as Dell Studio 15 Core I 5-HYW37BS from one of the authorized dealer of the OP by name reliance computers, SP Road, Bangalore-02 vide cash bill bearing no.2896 dated 15-10-2010 for Rs.54,300=00 towards the price of the laptop, and the said laptop continues to be covered by warranty even today.  He has allotted the customer number as 791263833 by the OP in their records. From the time of purchase of the Laptop, he had been experiencing several technical systems malfunctioning etc. At that point of time, he had sufficient knowledge of computer and he has been under the impression that operating systems pre loaded by the OOP were malfunctioning when he was in such a situation he had no other alternative data storage space and as such he had stored very important data.. On 25-10-2011 all of a sudden the laptop supplied by the OP had started functioning very slow and he contacted the technical support help line of the OP and he lodged a complaint in case ID No.844598700 with the OP. Thereafter the OP deputed the service engineer by name Praveen Shetty and that man insisted him to enter certain Debug commands in the BIOS of Laptop and that person had not informed to take back up of data,  and on account of it, after debugging, the entire data to the extent of 500 GB approximately got wiped out and due to that, he has been made to lose valuable, expensive and irretrievable data for no fault of his. But evenafter negligent debugging instruction given to by him the said service engineer of the OP the same problem continued to persist in the laptop. Once again on 23-1-2012 he had been constrained to raise the second level of escalation of the problem which is registered in case ID No.850143521 and during this period also there was a deficiency in service by the OP which had informed him that the original windows 7 which was dispatched was also damaged, once again another case ID number that was registered by him was 844598700 also on account of the hardware issue with the laptop and the negligence of insisting him to enter the debug command by the service engineer of the OP, and the laptop hard drive is not at all working and was showing partition error for which once again another case ID No.845320426 had been registered with the OP and the OP had want only avoided to enter into a full fledged service contract with him by predicting the consequences and ironically proceeding upon the technical experiment of debugging in the BIOS of his laptop. On account of defective laptop supplied by the OP and also the deficiency of services rendered by the OP, he was forced by the OP to incur expenses of Rs.5,000=00 towards extended warranty. The service team has replaced a refurbished optical drive which is not functioning properly, and the same is registered at case ID number 853155542.  He had contacted the technical support team, customer support teams the escalation to Managers, supervisors and the top officers of Dell but he was unable to get a solution to his problems with the defective laptop supplied by the OP. Later the system gets shut down and restarts on its own. As he had become unhappy with the poor services of the OP and there is deficiency of service on the part of the OP, so he is entitled to replacement of a new laptop. The recent case ID bearing no.871060597 has been registered by him in the month of January 2013 and on account of which the optical drive is not working and the laptop is making a loud noise when a CD is inserted in the optical drive and within 30 minutes of booting it completely shuts off and when the system is powered on within 10 seconds the system gets shut down from the time of booting. Thereby he has been made to suffer mental agony and he has lost his valuable time, energy and monetary loss. This act of the OP was unwarranted and against the known principles of natural justice contained within the CP Act. Between 30-3-2012 to 12-2-2013 he had sent several emails to the OP and he also requested the refund of the money paid to the OP, but the OP had ironically represented that the money cannot be refunded and the act of the OP is arbitrary and unjust and on top of it committed deficiency of services. He has paid a total amount of Rs.54,300=00 to the OP, but the OP has not repaid the amount collected from him, apart from the differential amount spent by him and additional amount of Rs.35,000=00 for mental agony and suffering undergone by him. He got issued a legal notice dated 19-2-2013 to the OP and OP sent a vague and untenable reply, so he has filed the present complaint, so he prayed to allow the complaint and grant relief as prayed for.

8. Let us have a look at the relevant documents of the complainant. Document no.1 of the complainant’s list dated 10-4-2013 is the copy of cash bill dated 15-10-2010 issued in the name of complainant by Reliance Computer for having purchased laptop for Rs.54,300=00. Document no.2 of the said list is the copy of certificate of warranty issued by the OP in the name of complainant giving one year warranty from the date of purchase of laptop. Document no.3 of the complainant’s list consists of copies of email correspondences made between the complainant and the OP and in the last email letter produced at page no.41 of the said document, the complainant has stated that, after receiving refurbished optical drive after 15 days now again optical drive is not functioning properly and after reaching dell technical support, customer support, escalation team, managers, supervisors he is unable to get a resolution and in the mean time his touchpad is not working fine and due to that he is unable to use mouse and many times his system gets restarted surprisingly and though he has trust on DELL Product he has lost hopes on the service, so there is no other option other than legal action, if he does not get any reply in the next two working days he is forced to escalate this matter to Michael Dell or file a case to the consumer court. Document no.4 is the copy of legal notice sent by the complainant’s lawyer to the OP Company dated 19-2-2013 calling upon the OP to replace the defective laptop of the complainant with a brand new laptop failing which the complainant will file a case in consumer court. Document no.5 is the copy of postal receipt issued by the postal authority to the complainant. Document no.6 is the copy of reply notice of the OP denying the contents of notice of the complainant and stated further that as per the agreed terms and conditions of the warranty, the complainant is not entitled to replacement of the laptop and the OP offered for repair of the same as per the terms and conditions of the warranty and now also the OP is ready to provide service to rectify the technical issues as per the terms and conditions of the warranty. Document no.1 to 5 of the second list of the complainant are the same documents produced alongwith first list. The complainant has produced one copy of letter of the OP and two photographs of laptop.

9. At this stage, it is relevant to have a cursory glace at the material evidence of the OP. One Sapandeep Kapoor, authorized representative of the OP has stated in his affidavit that, the complainant had purchased a Dell system model studio 1558 from the dealer at SP Road, Bangalore on 15-10-2010 by paying Rs.54,300=00 with applicable warranty terms and conditions and the said warranty is valid for one year from the date of purchase and later the complainant paid an extra amount for extension of warranty and it was valid till 28-2-2013. The parties to the agreement are bound by the contract and the OP has not violated any terms and conditions of the contract.  As per the terms and conditions of the sale the complainant is neither entitled to claim replacement of the laptop with a new one nor refund of the laptop price nor to claim any other sum as compensation. On 25-10-2011 the complainant contacted the OP and reported the issue with the operating system and this case was registered and after diagnosis from the OP it was found that issue was with the hard drive as it was giving error 0142. The representative of OP has informed the complainant to take data backup or debug on the hard drive otherwise he will lose data so which is very much within the knowledge of the complainant. The complainant’s responsibility to take data back up whenever there is any activity done on the said system, the OP also informed the complainant to take Data backup whenever contacted and inspite of it, if the complainant neglected to do so the OP cannot be blamed. The aforesaid issue was handled by the OP’s representative Praveen before doing the debug to the laptop of the complainant, it was informed to the complainant that the Data would be wiped and advised the complainant to take data backup, so the OP cannot be blamed at all for alleged loss of data. On 23-01-2012 the complainant contacted the OP’s technical support team, reporting that the said system has issue and he also wanted to know if the hard drive on the unit is fine or not and this case was registered and OP’s representative after all the diagnosis informed the complainant that the OP will arrange for the engineer visit along with the HDD by that time the complainant requested for windows operating system CD and accordingly the OP agreed to arrange for the engineer with the Windows operating system CD and the hard drive, and he denies that it has supplied defective laptop or committed any deficiency in service. The complainant contacted the OP’s technical team on 12-3-2012 reporting that system optical drive is not working and the same was registered and so the OP arranged for the engineer along with optical drive and solved the issues in the laptop upto the complainant’s satisfaction. As per the terms and conditions of the warranty the complainant is entitled to repair the laptop but not the replacement of the laptop, so the OP rightly declined to replace the laptop and offered for repair of the same as per the terms and conditions of warranty. The complainant has neither made out any case nor produced any materials regarding his claim for damages of Rs.1,57,800=00 or any amount for alleged financial loss, mental agony and loss of reputation. The OP has not committed any deficiency of service, so the complainant is not entitled for any relief, so the complaint be dismissed with cost.

10. The OP has produced terms and conditions of sale of the OP wherein it is stated clearly that, Dell reserves the right to replace the whole of the products or any part or parts thereof which may be found to be faulty or in need to investigation even where only a part of the products are so faulty or in need of investigation. The terms and condition of the warranty and sale of the OP makes it abundantly clear that, when the customer proves that the laptop is faulty or any part is faulty, the OP will replace the whole products or any part of thereof.   

11. Taking the oral and documentary evidence of the complainant, and compare the same with the material evidence of the OP, it is made manifest that, the complainant contacted the OP and reported that, optical drive was not working and also few other technical issues such as system shutting down automatically etc. The complainant has made correspondences with the OP to set right the problem of laptop still then the problem of laptop of the complainant was not solved by the OP. The oral evidence of the complainant that, after purchase of the laptop by investing an amount of Rs.54,300=00, the said laptop giving problem to him since it is shutting down and it is optical drive was not working well within the warranty period and it is making loud noise when CD is inserted and despite making request to the OP to set right the problem of laptop, no response was shown by the OP is corroborated by the copies of invoice of laptop issued in the name of complainant, warranty document, copies of emails correspondences between the complainant and OP and copies of photographs. On the other hand, the OP authorized representative has stated in his evidence that, after receiving the complaint from the complainant, the representative of the OP went and attended the problem of complainant to his satisfaction. But unfortunately, no documentary evidence is produced by the OP to show before this forum that, the representative of the OP went and attended the problem of complainant to the satisfaction of complainant. In the absence of producing any clear and tangible documentary evidence, the evidence of OP’s authorized representative that, the representative of the OP attended the problem of the Laptop of complainant well in time to the satisfaction of the complainant merits no much consideration. Viewing the case of the complainant on the back ground of the oral and documentary evidence of complainant and material evidence of OP, it is no doubt true that, the oral and documentary evidence of complainant are more believable trustworthy and acted upon than the material evidence of OP. Since, the problem of laptop of the complainant started well within the warranty period granted by the OP and his problems have not been solved by the OP to the satisfaction of complainant, the complainant is entitled for replacement of a new laptop with a new one of same model. So considering the material evidence of complainant on the back ground of terms and conditions of sale and warranty of the OP, we are of the considered opinion that, the complainant who comes to the forum seeking relief has proved with clear cogent and consistent material evidence that, the OP is negligent and there is deficiency of service on the part of the OP in not solving inherent problem of laptop to his satisfaction, and accordingly, we answer this point in a affirmative.

12. In view of our affirmative finding on point no.1, the complainant is entitled for replacement of new laptop of the same model, so the OP is directed to replace the new laptop of the same model and hand over the same to the complainant and take back the old laptop from the complainant, within 60 days from the date of this order, failing which, the OP shall refund Rs.54,300=00 to the complainant being the value of the laptop alongwith 7% interest per annum on the said amount from the date of this order to till the date of realization and the OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is partly allowed. The OP is directed to replace the new laptop of same model and hand over the same to the complainant and take back the old laptop from the complainant, within 60 days from the date of this order, failing which, the OP shall refund Rs.54,300=00 to the complainant being the value of the laptop alongwith 7% interest per annum on the said amount from the date of this order to till the date of realization .

          The OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.  

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 16^th day of December 2013).

MEMBER                                 PRESIDENT