BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT:THIRU. A. SAMPATH, B.A., B.L., PRESIDENT THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 3 / 2006 WEDNESDAY THE 30th DAY OF NOVEMBER 2011. S. Krithivasan, S/o. A.K. Subramanian, C-385, BHEL Town Ship, Ranipet 632 406, Vellore District. … Complainant. - Vs – 1. Ms. V. Hemalatha, Technical Executive, IBM Global Services India Pvt. Ltd., IBM Towers, 222 T.T.K. Road, Alwarpet, Chennai 600 018. 2. M/s. Abacus Netcomm, 5C, 5th Floor, “A” Block, 19/41, Anugraha Apartments, Nungambakkam High Road, Chennai 600 034. … Opposite parties. . . . . This petition coming on for final hearing before us on 14.11.11 in the presence of Thiru. R.J. Mohan, Advocate for the complainant and Thiru. S. Sankar Ganesh, Advocate for the opposite party-1 & opposite party-2 not pressed and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is working as Deputy General Manager at BHEL, Ranipet. The opposite party-1 is the Technical Executive of IBM India Limited and the opposite party-2 is the dealer of the opposite party-1. The complainant had purchased a IBM Think Centre S 51 8171 KQU with 15” TFT and Essma UPS from the opposite party No.2 having office at Spencers Plaza, Chennai vide invoice No.183 dt.11.8.05. He had purchased the system for his business purpose and for his daughter’s educational purpose who is doing her graduation. On 30.7.05, the opposite party-2 has received an advance amount sum of Rs.2000/- towards the sale of S51 8171 KQU with 15”TFT and Essma UPS at the rate of Rs.53,300/- from the complainant. Again the opposite party-2 have received a sum of Rs.45,000/- from the complainant, without installing the system. The complainant was issued an invoice vide No.183 dt. 11.8.05 for sum of Rs.53,500/- by the opposite party-2. The opposite party-2 also issued a Delivery challan vide D.C.No.310, dt.11.8.05 to the complainant for the delivery of IBM Think Centre S51 8171 KQU Intel Pentium IV 3 GR 2 (HT) Processor Intel 915 G Chipset / 1 MB 12 Lach 800 Mhz FSB, 256 MB DOR RAM / 80 GB HOD 7200 rmp dvd/cd-rwl (combo, 1.44 FOD/56KBPS Modem, optical Mouse / Intel 10/100 & net card, Infiinity stereop Sespaker / IBM key board window XP Home (Preloaded) IBM 15” TFT colour Monitor, Essam 500 VA UPS. The opposite party-2 delivered IBM Multimedia Key Board FRV No.73P 2620 only on 16.8.05 vide DC No.315, to the complainant. The opposite party-2 has received a sum of Rs.53,500/- from the complainant and issued a stamped Receipt for the same on 16.8.05 vide R.No.072. The opposite party-2 has issued a installation cum Warranty Certificate on 20.8.05. The warranty period is for three years from the date of installation. Only on 20.8.05 the opposite party-2 installed the system and assured that the system will function properly. After installation the system has worked only up to 13.9.05, thereafter the system having problems like system not booting, on/off switch button problem, system was very slow, beep sound was more, no response on switching on system, system hanging hard disk OS corruption etc. and the complainant reported about the defects of service and deficiencies in the system promptly on various occasions in these three months to the opposite parties on 13.9.05, 20.10.05, 28.10.05, 4.11.05, 5.11.05 and 11.11.05. The complainant sent E.mail to the first opposite party on 16.11.05 about the defective system and the first opposite party assured that the defect will be rectified and assured about warrant support on IBM product. Inspite of complaints reported by the complainant, it was not attended properly. After giving pressures to the opposite party, it was attended though not in time. 2. The 2nd opposite party had not supplied a branded PC and the complainant suspects that the opposite parties supplied an assembled product with the brand name of IBM. Inspite of repeated demands and request made by the complainant to refund the total amount of Rs.55,000/- to him, the same were not complied with by the opposite parties. The opposite parties sent REDINGTON service for attending the complaints of complainant. The Redington service issued service call report on 29.10.05 staring that pending for spare. The Redington issued another service call report on 4.11.05 call status as closed. On 5.11.05, the Redington issued another service call report as pending for Hard disk. On 11.11.05, the Redington issued another service call report as pending for DOA Hard disk. Hence, the complainant sustained great mental agony due to the deficiency of service on the part of the opposite parties, and the complainant estimates his less to be compensated at Rs.2,00,000/- The 2nd opposite party also received Rs.1000/- towards installation which is an unauthorized since it is the bounden duty of the opposite parties to install the system immediately after the receipt of the amount from the complainant. Further the opposite parties received a sum of Rs.500/- to attend the call of the complainant which is unknown to the fair trade practice. Hence the complainant prays this Forum for directing the opposite parties to refund the amount of Rs.55,000/- due to the complainant with interest thereof from 16.8.05 at 18% p.a. and to pay a sum of Rs.2,00,000/- for causing mental agony and physical torture on account of deficiency of service, negligence on the part of the opposite parties to the complainant and to pay a sum of Rs.10,000/- being the expenditure incurred by the complainant and Rs.5000/- being the cost of this complaint. 3. The averments in the counter filed by the 1st opposite party is as follows: The complainant as presently framed is not maintainable in law, under the C.P. Act 1986, a consumer is defined u/s 2 (1) (d) as a person who buys any goods for consideration or hires or avails of any service for consideration. In the instant case, the complainant has not bought any goods from the 1st opposite party nor has he availed of any services for consideration from the 1st opposite party. Any services that have been rendered to the complainant by the 1st opposite party are not rendered in a personal capacity but only as an employee of IBM India Pvt. Ltd. An employee of a company cannot be made a party to a complaint in a personal capacity in the absence of any separate or independent service availed from the employee for consideration. In the instant case, admittedly the complainant has not purchased any goods or hired any service from the 1st opposite party and accordingly the complaint as presently framed is not maintainable as against the 1st opposite party and deserves to be dismissed on this ground alone. It is accordingly prayed that the maintainability of the complaint as against the 1st opposite party be adjudicated as a preliminary issue before proceeding further. The complainant has already been refunded the entire purchase price of Rs.53,500/- vide DD No.846914 dt. 05.1.06 drawn on Indian Bank, Ranipet Industrial complex branch. The draft was duly handed over to the complainant’s mother on 5.1.06 and the computer system was collected back. Having chosen to accept refund of the purchase price and having returned the goods, the complainant no longer enjoys the status of the consumer and on this ground also, the complainant is not maintainable. As the complainant is no longer in possession of the goods originally purchased by him, the complaint as such is not maintainable and is only to be dismissed. 4. The allegations made by the complainant is paras 3, 4,5 & 6 should be responded only by the opposite party No.2, as such the complainant purchased the IBM Think Centre S 51 8171 KQU with 15’ TFT and Essma UPS from the 2nd opposite party. The 1st opposite party denies all the allegations made by the complainant in para-7 of the complaint as such it was mentioned as “and the complainant reported about the defects of service and deficiencies in the system properly on various occasions in these three months to the opposite parties on 13.9.05, 20.10.05, 28.10.05, 4.11.05, 5.11.05 and 11.11.05. The grievances raised by the complainant about the defects of the system of the system were properly attended by the company representatives. With respect to the complaint made on 13.9.05, which was reported as system not booting, the 2nd opposite party’s Engineer attended the complaint and rectified the system. It is understood that the problem arose on account of dust getting into the system and the complainant was advised to cover the system when not in use. With respect to the complainant on 20.10.05, reported as Power on button not working and the system was slow, again 2nd opposite party’s Engineer attended and solved the problem by reseating the power on button and cleared temporary files. For the complaint on 28.10.05 reported as system not powering on. It was found memory is defective, and on 4.11.05 memory was replaced and system started working fine. On 5.11.05 customer reported Hard Disk problem, the Redington engineer attended the call and found that operation system, was corrupted and Hard Disk making noise. It was intimated to the customer for the replacement of Hard Disk Drive (HDD). On 11.11.05 the replacement HDD has come, but the customer did not agree for the replacement of the HDD. All the above details were sent by the complainant to the 1st opposite party through e-mail. The 1st opposite party denies all the allegations of the complainant in para-7, as all the complaints made by the complainant for the problem of the system was duly attended at correct time and the allegation made as it was not attended properly was false. The faults were not on account of any manufacturing defect but arose from the use of the machine. The allegations contained in para-9 of the complaint to the effect that the 2nd opposite party had not supplied a branded PC and the complainant suspects that the opposite parties supplied an assembled product with the brand name of IBM is specifically denied. The complainant is put to the strictest proof of the allegation to this effect. The 1st opposite party denies all the allegations made by the complainant in para-10 as they were false and deceived. The statement in para-10 as the complainant sent a letter on 16.11.05 to the 1st opposite party and called up on her to send one of the representative to his address and pack the entire machine and dispatch it to the 2nd opposite party. The 1st opposite party spoke to the complainant on receipt of the letter dt.16.11.05, from him and offered replacement of the entire system without prejudice to its contention that there was no inherent manufacturing defect. However the complainant did not accept the offer for replacement. The 1st opposite party strictly denies the allegations specified by the complainant in para-12 that the complainant sustained mental strain and physical discomfiture because of non refund of the price of the PC amount sum of Rs.55000/-. The actual price of the system is Rs.53,500/-. The allegations contained in the complaint to the effect that the complainant was put to mental agony and loss to the tune of Rs.2,00,000/- on account of any act attributable to the 1st opposite party. The documents that have been filed are do not in any way made the opposite party liable as the complainant was refunded h is due money and the system was taken back. The complaint is not maintainable in law or on facts and the same is liable to be dismissed. 5. Now the points for consideration are: a) Whether the complaint is maintainable u/s 2(1)(d) of Consumer Protection Act, 1986?. b) Whether there is any deficiency in service, on the part of the opposite parties? c) Whether the complainant is entitled to the reliefs asked for?. 6. Ex.A1 to Ex.A24 were marked on the side of the complainant and Ex.B1 was marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 7. POINT NO. a) & b) : The complainant contended that the complainant had purchased a IBM Think Centre S 51 8171 KQU with 15” TFT and Essma UPS @ Rs.53,500/- under invoice Nos.183, dt. 11.8.05 from the 2nd opposite party. The 2nd opposite party also issued a Delivery challan vide D.C.No.310, dt. 11.8.05 and installed system on 20.8.05, and also issued a installation cum warranty certificate. After installation the system had worked only up to 13.9.05 and having problems like system not booting, on/off switch button problem, system was very slow, beep sound was more, no response on switching on system, system hanging hard disk OS corruption etc. and the complainant reported about the defects of service. Inspite of complaints reported by the complainant, it was not attended properly. Inspite of repeated demands and request made by the complainant to refund the total amount of Rs.55,000/- to him the same were not complied with by the opposite parties. Hence the complainant sustained great mental agony due to the deficiency of service on the part of the opposite parties. 8. The 1st opposite party contented that the complainant has not bought any goods from the 1st opposite party nor has he availed of any services for consideration from the 1st opposite party. Any services that have been rendered to the complainant by the 1st opposite party are not rendered in a personal capacity but only as an employee of IBM India Pvt. Ltd. An employee of a company cannot be made a party to a complaint in a personal capacity in the absence of any separate or independent service availed from the employee for consideration. Accordingly this complaint is not maintainable u/s 2 (1) (d) of the C.P. Act 1986. It is further contented that the complainant has already been refunded the entire purchase price of Rs.53,500/- vide DD.No.846914, dt. 5.1.06 drawn on Indian Bank, Ranipet Industrial Complex branch. Having chosen to accept refund of the purchase price and having returned the goods and as the complainant is no longer in possession of the goods originally purchased by him, the complaint as such is not maintainable and is only to be dismissed. 9. It is admitted case of the parties that the complainant had purchased a IBM Think Centre S 51 8171 KQU with 15” TFT and Essma UPS @ Rs.53,500/- under receipt Ex.A5, dt. 16.8.05 from the 2nd opposite party. On 20.8.05 the opposite party -2 installed the system in the complainant’s residence and issued the delivery challans Ex.A6, dt.11.8.05 and Ex.A7, dt.16.8.05 and installation cum warranty certificate Ex.A8, dt. 20.8.05. According to the complainant after installation the system has worked only up to 13.9.05. Thereafter the system having problems like system not booting, on/off switch button problem, system was very slow, beep sound was more, no response on switching on system, system hanging hard disk OS corruption etc. Inspite of repeated demands and request made by the complainant to refund the total amount of Rs.55,000/- to him, the same were not complied with by the opposite parties. The contention of the 1st opposite party that the complaint is not maintainable u/s 12 (1) (d) of the C.P. Act 1986, since the complainant has not bought any goods from the 1st opposite party nor has he availed of any services for consideration from the 1st opposite party. The complainant not pressed the complaint against the 2nd opposite party. Under the C.P. Act 1986 a consumer is defined u/s 2 (1) (d) is as follows: (d) “consumer” means any person who – (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or “ In the instant case the complainant had not purchased the said IBM Think Centre S 51 8171 KQU with 15” TFT and Essma Ups or hired any service from the 1st opposite party, further, there is no documents to prove that the service availed for consideration from the 1st opposite party. Further the complainant has not denied the contention of the 1st opposite party that the complainant has already been refunded the entire purchase price of Rs.53,500/- vide DD.No.846914, dt. 5.1.06 drawn on Indian Bank, Ranipet Industrial Complex branch and the said DD was duly handed over to the complainant’s mother on the same day and the computer system was collected back. Hence the contention of the 1st opposite party that as the complainant is no longer in possession of the goods originally purchased by him, the complaint as such is not maintainable is acceptable. 10. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A24 and Ex.B1 we have come to the conclusion that the complaint is not maintainable before this Forum as defined under Consumer Protection Act 1986. We have also come to the conclusion, that the complainant has not clearly proved the deficiency in service, on the part of the opposite party. Hence we answer this point (a) & (b) as against the complainant herein. 11. POINT NO; (c) : In view of our findings on point No.(a) & (b) since we have come to the conclusion that the complaint is not maintainable as defined under Consumer Protection Act 1986, and we have also come to the conclusion that the complainant is not at all entitled to any relief asked by him in this complaint. Hence, we answer this point (c) also as against the complainant herein. 12. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 30th day of November 2011. MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- -- - X-copy of PC Catalogue. Ex.A2- 30.7.05 - X-copy of Receipt. Ex.A3- 16.8.05 - X-copy of Receipt. Ex.A4- 11.8.05 - X-copy of Invoice. Ex.A5- 16.8.05 - X-copy of stamped receipt. Ex.A6- 11.8.05 - X-copy of Delivery Challan. Ex.A7- 16.8.05 - X-copy of the Delivery Challan. Ex.A8- -- - X-copy of the Installation cum warranty certificate. Ex.A9- 13.9.05 - X-copy of t he service card report. Ex.A10- 20.10.05 - X-copy of the service card report. Ex.A11- 29.10.05 - X-copy of the Service card report. Ex.A12- 4.11.05 - X-copy of the service card report. Ex.A13- 5.11.05 - X-copy of the service card report. Ex.A14- 11.11.05 - X-copy of the service card report. Ex.A15- 16.11.05 - X-copy of the complaint letter by complainant to opposite party-1. Ex.A16- 24.11.05 - X-copy of the compliant letter. Ex.A17- 30.11.05 - X-copy of the complaint letter. Ex.A18- 16.11.05 - X-copy of the complaint letter. Ex.A19- 17.11.05 - X-copy of the Ack. Card by the 2nd opposite party. Ex.A20- 17.11.05 - X-copy of the Ack. Card by the 1st opposite party. Ex.A21- 26.11.05 - X-copy of the Ack. Card by the 2nd opposite party. Ex.A22- 1.2.05. - X-copy of the Ack. Card by the 1st opposite party. Ex.A23- 23.11.05 - X-copy of the Ack. Card by the opposite party-2. Ex.A24- 30.11.05 - X-copy of the Ack. Card by the opposite party-1. Opposite parties’ Exhibits: Ex.B1- 5.1.06 - X-copy of the Demand Draft of Rs.53500/- MEMBER-II PRESIDENT.
| | [HONABLE MR. Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT | | 
