KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 695/2018

JUDGMENT DATED: 28.10.2021

           (Against the Order in C.C.103/2017 of CDRF, Kozhikode)

PRESENT:

APPELLANT:

M/s. Dell International Service India Pvt. Ltd., Diyasree Greens, Ground Floor, 12/1, 12/2A, 13/1A, Challangatta Village, Varthur Hobli, Bangalore South-560 071.

                  (By Advs. Joju Kynady & Nithya S.)

Vs.

RESPONDENTS:

1. Sindhu Menon, Beach Palms, Bilathikulam, West Hill P.O., Kozhikode-673 005.

2. The Manager, IMC Mobiles Pvt. Ltd., Dell Exclusive Store 17/1609 A, Arafa Building, Pavmani Road, Stadium Junction, Kozhikode.

                                                          JUDGMENT

SMT.BEENA KUMARI. A :MEMBER

This appeal is filed by the appellant/2^nd opposite party against the order passed by the Consumer Disputes Redressal Forum, Kozhikode, in short, the District Forum, in C.C. No. 103/2017.  By the order dated 11.09.2018 the District Forum has ordered that the opposite parties to refund the complainant an amount of              Rs. 41,500/- along with Rs. 1,00,000/- as compensation and      Rs. 5,000/- as litigation costs.

2. Brief facts of the case are that the 1^st respondent/complainant on 19.08.2016 bought a new Dell all-in-one computer from the 2^nd respondent for Rs. 39,000/-, and also took 2 years extended warranty after paying Rs. 2,500/-.  Since the complainant is a journalist by profession most of her assignments are being done on the computer.  The basic software was installed by DELL Service staff.  She took the computer to her home and when operated, to her dismay, multiple folders with individual names appeared on the monitor.  She made a complaint to the 1^st opposite party and the system was replaced with another alleged new one.  The complainant stated that the computer first supplied was either a used one or a defective one.  Complainant stated that the new one supplied by the 1^st opposite party/2^nd respondent worked perfectly for one week and then the screen started going blank.  The complainant informed the matter to the opposite parties.  The opposite parties several times tried to rectify the defects.   With this process, all documents, files and data saved in the C drive of the system got deleted along with all softwares installed including anti-virus protection software.  It is further stated that, even after repeated repairs the same complaints persisted and therefore the DELL technicians changed the LCD screen and motherboard of the system.  But even after all these processes the defects still persisted, and to her dismay, on 28.11.2016 she got a mail from DELL saying that since the problems were solved they were closing the complaint and to that she sent a mail objecting the said decision.  Since even after repeated check-ups and repairs by the opposite parties they could not even find out what was the exact complaint with the system or to rectify the defects, she sent a notice to the opposite parties demanding refund of the purchase price of the system.  But the opposite parties rejected her request.  The complainant alleged that the sale of defective products is unfair trade practice and the negligent and indifferent attitude of the opposite parties in attending the complaints of a customer timely and properly amounted to deficiency in service on the part of opposite parties.  Due to the act of the opposite parties she had suffered both professionally and financially by not being able to meet up deadlines and loss of valuable data stored in the system apart from the mental agony and other hardships suffered.  Hence the complaint was filed demanding refund of the purchase price along with compensation of Rs. 10,00,000/- and also costs of the proceedings. 

3.  The 1^st opposite party remained ex-parte in District Forum.  Opposite parties 2 to 6 filed combined version and contested the case strongly.  Their main contentions are that the motive of the complainant is to extract undue gain from the opposite parties.  The opposite parties are unaware of the qualifications of the complainant and her profession.  The allegation raised by the complainant about the replacement of the first computer by the 1^st opposite party was denied by the opposite parties 2 to 6 as want of knowledge.  The allegation that after much effort the petitioner could contact with the customer care of the 2^nd opposite party etc. was denied as not true and stated that, at times the customer care department lines may be busy because of customer enquiries, but once the call got answered, the same might have been transferred to the right department for better attention and troubleshooting. The opposite parties further contended that, the 2^nd opposite party for the first time got a complaint from the complainant on 08.11.2016.  Immediately, their representative duly assisted the complainant over phone and all trouble shooting was done. As no hardware issue was found with the system, they informed that the operating system needs to be re-installed.  During the operating system re-installation process datas saved on the computer can be lost and so the opposite parties informed the complainant to take data back up so that the same will not be lost.  But the complainant did not do so.  The opposite parties further contended that on 21.11.2016 the complainant reported issues with the computer to the 2^nd opposite party and accordingly the LCD and motherboard of the computer were replaced on 25.11.2016.  Thereafter no communication from the side of the complainant.  Hence the complaint was closed on the conclusion that all the problems are resolved.  But again during the month of December the complainant contacted the 2^nd opposite party and reported issues with the computer.  Then the 2^nd opposite party asked the complainant to visit a DELL service centre.  But the complainant was not willing to visit the service centre.  She demanded refund of the price of the system.  The  opposite parties further stated that all the complaints reported were attended either via email or over phone and all possible measures to resolve the issues were taken and defects were duly rectified by them and also assured the complainant to rectify the defects as per the warranty terms and conditions in future.  They submitted that they have not committed any unfair trade practice as alleged and there is no deficiency in service on their side.  Hence they prayed for the dismissal of the complaint. 

4.  In the District forum the complainant filed proof affidavit and examined herself as PW1 and Exts. A1 to A10 were marked.  Opposite parties 2 to 6 cross examined the complainant.  Opposite parties have not adduced any evidence.  On the basis of the pleadings, evidence and arguments of both sides the findings of the District Forum were that: There is no dispute with regard to the purchase of the computer or its price.  The allegation raised by the opposite parties that they have no knowledge about the replacement of the first computer cannot be sustained because it was not relevant.  The opposite parties had repaired the second computer which was the subject matter of the complaint and not raised any objection.  The computer was manufactured by DELL company.  Moreover, opposite parties replaced the LCD and motherboard of the computer.

5.  The District Forum found that the computer was a defective one and all the efforts made by the opposite parties failed to rectify its defects.  Exts. A2 to A8 are the e-mail communication between the complainant and opposite parties.  Ext. A5 is the copy of notice issued by the complainant to the opposite party demanding refund of its purchase price along with compensation.  Ext. A8 is the reply of the opposite party denying the demand for refund and offering for resolving technical issues with regard to the computer in future. 

6.  The District Forum found that the act of the opposite parties to replace the LCD screen and mother board of the computer proved that the allegation of the complainant that the substituted computer also was defective and was not working properly was true and correct.  The act of the opposite parties itself is deficiency in service on their part. 

7.  According to the complainant, the opposite parties offered replacement/refund only after filing the complaint before the District Forum.  The opposite parties have not denied the statement.  Since she had suffered much mental agony and hardships and sustained huge financial loss professionally due to the defects of the computer, the opposite parties are bound to make good her losses, but they are not ready to pay any compensation.  The District Forum found that as a journalist she had suffered financial loss and hardship due to the defects of the computer.  Hence opposite parties are bound to compensate the complainant reasonably.  If they offered replacement/refund with reasonable compensation, then filing of the complaint could have been avoided.  The said attitude of the opposite parties also amounted to deficiency in service on their part.  Ext. A9 is the copy of P.G. Diploma in Journalism.  Exts. A10 series are the copies of articles contributed to various National and International Journals like Equal Times, Labour file etc. by the complainant and Ext. A10 (f) to (i) are copies of consultancy agreement entered into between the complainant and Centre For Education and Communications Society.  These documents proved that the complainant was a journalist by profession and that she was contributing articles to the said journals after conducting enquiries, taking interviews and photos on various subjects.  The District Forum concluded that there is no doubt that the complainant is a journalist by profession.  So computer is an inevitable part of her profession and the defects with the same will cause much mental pain, other hardships and also financial loss to her.  So she is entitled to get a reasonable amount as compensation for the losses and sufferings.  Hence the Forum allowed an amount of Rs. 1,00,000/- as compensation and ordered to refund Rs. 41,500/- the price of the computer and Rs. 5,000/- as costs of the proceedings within 30 days from the date of receipt of the order, otherwise the amounts will carry 9% interest from the date of default till payment.  The opposite parties can take back the computer on compliance of the order.  Aggrieved by the said order the 2^nd opposite party has filed this appeal.  The 1^st opposite party remained ex-parte before the District Forum.  All the opposite parties are Dell India Pvt. Ltd. and its other wings.  The 1^st opposite party is the dealer.  No order is passed against the 1^st opposite party.  The complainant is the 1^st respondent and 1^st opposite party is the 2^nd respondent. 

8.  The grounds raised by the appellant in the appeal memorandum are that the order of the District Forum is against the evidence of the case and is based on wrong application of law.  There was no deficiency in service from the side of the appellant and the complainant failed to prove manufacturing defect in the computer with ample evidence.  There was no expert opinion to prove the matter.  The District Forum has arrived at the conclusion and passed the order based on the version described in the complaint and based on some e-mails, which is not just and fair.  There is no dispute that the complainant has purchased the computer on 19.08.2016.  The system has one year manufacturer’s warranty.  After the purchase, within one week the computer became defective and the 2^nd respondent/1^st opposite party replaced the same on 24^th September.  Complainant purchased extended warranty for further two years on payment of Rs. 2,500/-.  Ext. P1 is the purchase invoice.  There is no doubt that the computer purchased by the complainant at first time was defective one or used one.  For that reason they replaced the computer with another one.  This act of the opposite party definitely comes under the purview of unfair trade practice. 

9.  The new system worked perfectly for one week and the screen went blank again.  The complainant lodged another complaint before the opposite parties.  They attended to the complaint and replaced LCD screen and motherboard on 25.11.2016.  Ext. A3 proves the replacement.  Ext. A2 is the letter issued by the appellant on 25.01.2017.   Ext. A6 is the letter issued by the appellant on 12.01.2017.  After receiving Ext. A4 letter, the appellant informed the 1^st respondent that they had closed her complaint.  For that letter the complainant issued Ext. P5 notice to the appellant demanding refund of the price of the computer.  Ext. P8 letter is the reply notice of the appellant expressing their inability to refund the amount and promised their assistance for further problems.  The complainant proved her case through these documents, Exts. A1 to A8.  The documents proved that the computer was having inherent manufacturing defects.  Hence there is no need for further expert opinion.  The complainant purchased the computer on 19.08.2016, replaced the computer on 24.09.2016, motherboard and LCD screen replaced on 25.11.2016.  All these matters occurred within 3 months of its purchase date.  The computer has three years warranty.  All the defects occurred within the warrant period.  The opposite party has the liability to replace the defective computer or refund the amount to the complainant.  These acts of opposite parties definitely amount to unfair trade practice and deficiency in their service.  Due to the act of the appellant, the 1^st respondent suffered so much.  The submission of the counsel for the appellant that the complainant did not bring forward any expert opinion is untenable in the present case in view of the documents (Exts. A1 to A8).  Another objection raised by the appellant is that the complainant has not submitted any details of the regular income as a professional journalist to claim compensation to the tune of Rs. 10,00,000/-.  They argued that the complainant has failed to prove her sufferings, loss or injury on the negligence in rendering service, and therefore, no compensation could be awarded.  It is not justifiable to award Rs. 1,00,000/- as compensation to the complainant. 

10.  The complainant has produced Exts. A9 to A10 series before the District Forum.  These documents showed her educational qualifications and about her professional experience. Ext. A10 to A10(e) are the copies of articles contributed to various National and International journals like Equal times, Labour file etc. by the complainant and Exts. A10 (f) to A10(i) are the copies of Consultancy Agreement entered into between the complainant and Centre for Education and Communications Society having its registered office in India.  These documents proved that the complainant is a journalist by profession and she is contributing articles to the said journals after conducting enquiries, taking interviews and photos on various subjects.  Evidence proved that the complainant is a journalist by profession.  So there is no doubt a computer is an inevitable part of her profession and the defects with the same will definitely cause much mental agony and other hardships and also financial loss to her.  So she is entitled to get a reasonable compensation for the losses and sufferings.  Considering these facts the District Forum allowed Rs. 1,00,000/- as compensation along with other reliefs.  We find that the amount of compensation awarded by the District Forum is exorbitant considering the facts and subject matter of the case.  Since the complainant has failed to prove her income with sufficient documents, we reduce the amount of compensation to Rs.75,000/-. 

In the result, the appeal is partly allowed and the order of the District Forum is modified to the extent of reducing the amount of compensation to Rs. 75,000/-.  Rest of the order of the District Forum shall remain unchanged.

The 1^st respondent shall have the right to withdraw the amount deposited by the appellant at the time of filing of the appeal and also the amount deposited by the appellant before the District Forum as condition, at the time of granting stay, on proper application. The appellant shall pay the balance amount within one month from the date of receipt of a copy of this order.  No order as to costs.

JUSTICE   K.SURENDRA MOHAN: PRESIDENT

                                                T.S.P.MOOSATH                : JUDICIAL MEMBER

                                                            RANJIT . R                          :MEMBER

                                                            BEENA KUMARI. A          :MEMBER

                                                            K.R.RADHA KRISHNAN    : MEMBER

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